Federal Court of Australia

DDT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 174

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed on 13 July 2020 be dismissed.

2.    The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.

3.    The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

RARES J:

1    This is an application for an extension of time of, effectively, one business day, for the applicant to file a notice of appeal from the decision of the Federal Circuit Court given on 9 June 2020 refusing him constitutional writ relief in respect of the decision of the Immigration Assessment Authority given on 19 June 2017 to affirm the decision of the Minister’s delegate made on 16 January 2017 not to grant him a safe haven enterprise visa: DDT17 v Minister for Immigration [2020] FCCA 1511.

Background

2    The applicant is a citizen of Bangladesh who arrived in Australia by boat in early 2013. The Authority summarised his claims at a high level. The claims centred on his fear of harm from the Bangladesh National Party (BNP). He claimed that men working for the BNP had threatened to kill him if he did not resign from the Awami League or its associate, the Awami Jubo League (AJL) and join the BNP. He claimed his life had also been threatened by AJL members who had told him that they would kill him if he resigned from the AJL in response to the BNP threats. He claimed that one of his friends was killed by burglars while he was at his friend’s shop, and that the burglars had also made threats against him. The applicant gave a deal of elaboration of those claims at various points during his dealings with the Minister’s Department and the Authority.

3    The delegate found that the applicant’s narrative and explanations about the incidents in which he claimed to have developed a fear of harm were unconvincing and inadequate. The delegate did not accept the applicant’s claims of any political involvement with the AJL, noting, among other things, that in his entry interview in 2013, he had initially said that he had no political claims. The delegate concluded that the applicant had embellished his claims in order to invoke Australia’s protection obligations and rejected them.

the Authority’s Decision

4    On 6 February 2017, the applicant wrote a letter to the Authority in which he contested a number of the delegate’s adverse findings as to his knowledge or acts. Those included matters which the Authority later found the delegate had not fairly asked him to explain.

5    In its reasons, the Authority reviewed the detailed submissions the applicant made to it in his letter of 6 February 2017. It found that it would have regard to that part of the letter that amounted to submissions. It found that some submissions were responses to findings that the delegate had made of which the applicant had been given no notice of their factual basis, and the Authority allowed those to be made and considered as new information. It rejected other parts of the submissions dealing with matters which did not amount to new information for the purposes of s 473DD of the Migration Act 1958 (Cth).

6    However, after carefully reviewing the material before it and making some findings more favourable than the delegate made concerning the applicant, the Authority found his evidence overall to be unconvincing concerning his involvement in the AJL and attacks on him by the BNP. The Authority did not accept that the applicant was ever a member or supported the AJL, had any interest in supporting it or the Awami League were he to return to Bangladesh, or had ever been attacked, kidnapped, threatened by the BNP, or persons working for it. Nor did it accept that any threats had been made against his family of a similar kind.

7    The Authority found that, because of its doubts about the applicant’s overall credibility, it did not accept that his brother had gone missing, his uncle had died after being injected with an unknown substance, he had been fearful of approaching the police due to fear of the BNP, or that his friend had been murdered by burglars and the applicant had fled the scene for fear of being located by the BNP. Based on its overall findings about the applicant’s claims, the Authority was not satisfied that, if returned to Bangladesh, he would face a real chance of harm for any of the reasons that he claimed.

8    The Authority also found that while the applicant had informed the interviewing officer at his entry interview, about 22 days after his arrival in Australia, that he feared poverty and starvation were he to return to Bangladesh, that was an exaggeration, because the applicant had been employed there before leaving. Accordingly, the Authority was not satisfied there was a real chance that the applicant would face harm in the form of poverty or starvation were he to return to Bangladesh or that his capacity to subsist there was otherwise threatened.

9    It concluded that, based on recent credible country information about Bangladesh and the applicant’s circumstances, it was not satisfied that he would face a real chance of serious or significant harm, for the purposes of ss 36(2)(a) or (aa) of the Migration Act, and affirmed the delegate’s decision to refuse to grant the visa.

Decision of the trial judge

10    The trial judge dealt with the six grounds of review that the applicant’s originating application specified and an additional eight particulars in a submission that the applicant had put in an affidavit he filed in the Federal Circuit Court on 22 February 2019.

11    His Honour discussed each of those matters and, in substance, concluded that they amounted to bare, unparticularised assertions or generalisations that did not disclose any jurisdictional error in the Authority’s reasons or decision. Ground 6 in the application below asserted, as his Honour interpreted it, that the Authority had come to an identical or similar position to the Department and had exhibited other than an impartial mind. His Honour rejected that proposition. He found that the grounds asked the Court to review the merits of the Authority’s decision, which was beyond the scope of judicial review.

12    His Honour examined individually each of the eight further submissions that the applicant had made in his affidavit. He summarised his conclusion saying that, without further details to make the allegations in them meaningful, they failed to identify any case of jurisdictional error or were otherwise unintelligible.

13    The trial judge found that there was not any jurisdictional error in the Authority not giving notice to the applicant of a nondisclosure certificate issued under s 473GB by an assistant director of the temporary protection visa assessment branch of the Department, as a delegate of the Minister. The certificate was in respect of an identity interview recording and report made in March 2013. His Honour found that the omission of any reference to the certificate in the Authority’s decision did not provide a basis for an inference that it had not considered, in the exercise of its discretion under s 473GB(3)(b) of the Act, whether to disclose any matter contained in that material to the applicant. His Honour found that the documents the subject of the certificate related to the applicant’s identity, which was not in dispute, so that it was not apparent how non-disclosure of the existence of the certificate and all the material it covered could have deprived the applicant of a successful outcome. Moreover, his Honour found there was nothing to indicate that the Authority had taken any of that material into account in arriving at its decision.

14    He found that the applicant had not been able to disclose any jurisdictional error and dismissed the application with costs.

The application for an extension of time

15    In his affidavit of 10 July 2020 in support of the extension of time, the applicant said that his application had been dismissed on 12 June 2020, and annexed a copy of the trial judge’s reasons for judgment that were certified by his Honour’s associate on 12 June 2020. In fact, the judgment was given the previous Tuesday, 9 June 2020. The applicant said that he was not aware of the decision (meaning, I infer, the written reasons) and was hoping the Department would have written to him about his future steps he needed to take, but was incorrect.

16    At this point, the applicant decided to lodge the application for an extension of time. The draft notice of appeal, which he annexed to the affidavit, contains a single ground with two particulars. The ground alleged that the Authority had failed to provide an intelligible reason why it had failed to consider using its powers to get new information under s 473DC of the Act. The two particulars asserted that, in dealing with the “data breach” claim that the applicant had advanced, the Authority had made a decision so unreasonable that no reasonable person would have made it, by failing to consider utilising powers under s 473DC either, first, to invite the applicant to respond to its finding that there was no information before it to suggest that the authorities in Bangladesh had accessed his personal data, despite the delegate having found to the contrary, or, secondly, to put him on notice as to country information that it held and which was material to its findings and decision.

17    No issue concerning any data breach appeared in the delegate’s or the Authority’s decisions, and the allegations in the draft notice of appeal have nothing to do with anything that the trial judge recorded in his reasons as issues in the application below.

The applicant’s submission

18    During the course of argument, I raised with the applicant whether there was anything else that he wished to put forward in support of being allowed to bring an appeal from his Honour’s decision. He said that a friend had drafted the draft notice of appeal, and he did not understand what its contents were, but had accepted the assistance thinking it was relevant to his case. He acknowledged that both the delegate and the Authority had not believed what he said, and that he did not have documentary material to corroborate his claims. He said that he had genuine problems and faced political difficulties were he to be returned to Bangladesh. He claimed that he would be harmed, and pointed out that he had been in Australia for 10 years, away from his home and family, as evidence of the genuineness of his fear.

Consideration

19    An application for an extension of time in which to file a notice of appeal requires the applicant, first, to explain his or her delay, secondly, to establish that each relevant decision was erroneous, or that there was a reasonable basis to argue that it was, and, thirdly, to establish that he or she would suffer substantial injustice if leave to appeal or an extension of time were not granted. That is because an application for an extension of time challenges a respondent’s vested right to retain the benefit of the judgment that is the subject of the proposed appeal, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519–520 [3]–[4], and see also at 539–543 [66] per Kirby J. The Court deals with such applications in the way that each of their Honours adopted from what Lord Denning MR had said in Regina v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E– F (and see also FFM20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 405 at 409 [19] per Rares, Stewart and Abraham JJ), namely:

We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.

20    The principles that govern the grant of leave to appeal are well established, as McHugh, Kirby and Callinan JJ said in Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29], namely:

… An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave. The applicant must also show that substantial injustice will result from a refusal of leave to appeal.

21    Here, the delay of effectively one business day is relatively immaterial and could cause no prejudice to the Minister. I think that it is likely that the applicant was confused, as he explained orally and I infer from his affidavit of 10 July 2020. However, the draft notice of appeal raises a ground and particulars that have no relationship whatever to the trial judge’s decision or reasons or anything in the process before the Authority.

22    As the applicant identified in the course of his oral submissions, his real concern is to find a way to continue to remain in Australia and not be returned to Bangladesh. The Court is not able to give any such relief.

23    Having carefully read the decision of the delegate, the Authority and the trial judge, I am unable to identify any possible basis on which the applicant could have argued that the Authority’s decision was affected by a jurisdictional error or the trial judge made an appellable error in his Honour’s careful examination of the applicant’s grounds of review of the Authority’s decision and his rejection of them.

24    For these reasons, were I to grant an extension of time, any appeal would be hopeless.

Conclusion

25    It follows that the application must be dismissed with costs.

Associate:

Dated:    6 March 2023