Federal Court of Australia

CVC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 556

ORDERS

THE COURT ORDERS THAT:

1.    The application to extend time filed on 15 July 2020 be dismissed.

2.    The applicant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

1    On 11 June 2020, the Federal Circuit Court of Australia dismissed the applicant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Tribunal’s decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse the applicant a protection visa.

2    The applicant has filed an application to extend time within which to appeal from the judgment of the court below. This application is necessary because an appeal should have been filed within 28 days of the date of the judgment: r 36.03 of the Federal Court Rules 2011 (Cth). The present application was filed on 15 July 2020. At that time, the applicant was six days out of time for filing an appeal.

3    I note as a further background fact that, since the filing of the application to extend time, the applicant has departed Australia without a right of return—a matter of considerable significance, to which I will return. At the present time, I simply note that the applicant has not taken steps to withdraw the present application.

4    The applicant failed to attend a case management hearing in this matter on 21 April 2022, and has not appeared at the hearing today. She has not complied with the Court’s order of 22 July 2020 that she file a written outline of submissions. She has not responded to correspondence sent by the Minister or by the Court in relation to her application to extend time.

5    The application to extend time is supported by an affidavit made by the applicant on 13 July 2020. In that affidavit, she states that she did not commence an appeal to this Court within time because she did not know the “law procedure”. She says that her case was “not considered properly” and that “(t)here exist Jurisdictional errors”. The affidavit does not descend to greater particularity.

6    The draft notice of appeal accompanying the application to extend time simply states:

1.      There exists jurisdictional error.

Some claims related to my application were not properly considered.

2.      My case was not treated fairly.

My claim was ignored without consideration.

7    The applicant’s claim for protection is that she had been oppressed, molested, and arrested by public and police officials in a particular location in China in connection with her involvement in running her father’s restaurant in that location, after she graduated from high school in June 2012.

8    The Tribunal identified a number of inconsistencies and contradictions in (a) the applicant’s account of these matters as given in her written statement in support of the visa application; (b) the claims and evidence the applicant made and gave at an interview with the delegate; and (c) the claims and evidence the applicant made and gave at the hearing before the Tribunal.

9    The Tribunal invited the applicant to comment on these inconsistencies. The Tribunal was not satisfied with her response. The Tribunal rejected the applicant’s claim to protection under both the Refugees Convention criterion and the complementary protection criterion.

10    In the court below, the applicant raised three grounds of judicial review, expressed as follows:

1.      Jurisdictional error has been made.

Tribunal makes some improper decisions

In my written statement, it is not stated that I claimed compensation. I also gave oral statement I did not claim compensation. But Tribunal held that there is inconsistence between written and oral statement.

Tribunal rejects my claim that I fled China because of my problems my father and I faced in terms of unsound opinion.

2.       Tribunal did not correctly consider I would be seriously harmed after I return to China.

3.      There exists interpretation error as to my role in the restaurant, which leads the Tribunal to doubt my credibility of my claim.

11    The primary judge rejected each ground.

12    The first ground refers to inconsistencies which the Tribunal identified in the applicant’s claims and evidence concerning (a) damage to her father’s restaurant by an official, and (b) subsequent requests for compensation allegedly made for that damage. Before the court below, the applicant contended that the Tribunal erred in finding these inconsistencies because, according to the applicant, she had never asserted that compensation for the damage had been sought.

13    The primary judge found that this ground failed as a matter of fact.

14    His Honour found that the applicant had, in fact, asserted in her written statement in support of the visa application that an official had caused damage to the restaurant and that she had unsuccessfully claimed compensation for that damage on two occasions.

15    The primary judge found that this ground failed for the further reason that the Tribunal did not rely on these particular inconsistencies in rejecting the applicant’s claim for protection.

16    Finally, the primary judge also found that the first ground of review sought no more than impermissible merits review of the Tribunal’s decision.

17    The primary judge found that the second ground of review was cast in such generalised and unparticularised terms that it, too, sought impermissible merits review of the Tribunal’s decision.

18    The primary judge found that the third ground of review was ambiguous. If the allegation was that the Tribunal misunderstood the evidence, then the ground sought impermissible merits review of the Tribunal’s decision. If the allegation was that the interpreter at the Tribunal hearing did not accurately interpret the discussion and conversation at that hearing, then there was no evidence before the court below which could lead to a finding that the Tribunal hearing was infected by any inadequate interpretation or translation, in accordance with the principles summarised in SZOBN v Minister for Immigration and Citizenship (2010) 119 ALD 260 at [27].

19    For these reasons, the primary judge was not satisfied that the applicant had established jurisdictional error on the part of the Tribunal. The primary judge therefore dismissed the application for judicial review, with costs.

20    I am not persuaded that time should be extended to allow an appeal from the judgment given below. The proposed grounds of appeal are devoid of merit.

21    A number of the applicant’s grounds appear to be directed to the decision of the Tribunal rather than to the judgment of the court below. So understood, they appear to raise matters that were not the subject of the application for judicial review. I refer, in particular, to the grounds that the applicant’s “case was not treated fairly”: that her “claim was ignored without consideration”; and that “some claims related to [her] application were not properly considered”. The applicant would require the leave of the Court to raise those grounds now. I am not persuaded that such leave should be granted, particularly given the unparticularised nature of the grounds, and the absence of any explanation as to why, if they are of merit, these grounds were not put before the court below.

22    This leaves the bare allegation that “(t)here exists jurisdictional error”. If this is read as an allegation that the primary judge erred in failing to find that the Tribunal’s decision was affected by jurisdictional error then, on the material before me, this ground of appeal has no prospects of success. Having considered the primary judge’s reasons, I am not persuaded that his Honour erred in his conclusion that, on the case brought below, the applicant failed to establish jurisdictional error.

23    There are additional reasons why time should not be extended.

24    First, the applicant has not appeared, and has not complied with the Court’s orders for the filing of a written outline of submissions. She has failed to prosecute the present application with the requisite diligence. Her application could be dismissed for these reasons alone. I have decided, however, to determine it on its merits.

25    Secondly, as I have noted, the applicant has departed Australia without a right of return. One criterion for the grant of a protection visa is that the applicant for the visa be in Australia at the time the decision to grant the visa is made: cl 866.411 of Sch 2 to the Migration Regulations 1994 (Cth).

26    There is no material before me which would suggest that there is any reasonable prospect that the applicant could satisfy this criterion were an appeal to be permitted and successfully prosecuted, such as to result in the matter being remitted to the Tribunal for redetermination.

27    If the matter were to be remitted to the Tribunal for redetermination in the present circumstances, then the applicant’s absence from Australia would leave the Tribunal with no choice but to affirm the decision under review. Thus, an appeal to this Court, from the judgment below, would be a barren exercise.

28    For all these reasons, the application to extend time will be dismissed. The applicant must pay the Minister’s costs.

Associate:

Dated:    13 May 2022