Federal Court of Australia

DCW19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 675

ORDERS

THE COURT ORDERS THAT:

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

2.    The application for an extension of time and leave to appeal is dismissed.

3.    The applicant is to 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

(Delivered ex tempore, revised from the transcript)

PERRY J:

1.    INTRODUCTION

1    This is an application for an extension of time and leave to appeal from the decision of the then Federal Circuit Court of Australia. That decision, made on 31 August 2020, dismissed an application for reinstatement of proceedings under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Oral reasons were given at the time of the hearing, and written reasons were subsequently published on 13 November 2020. The applicant’s substantive proceedings in the Federal Circuit Court sought a Constitutional writ with respect to a decision of the Administrative Appeals Tribunal made on 16 July 2019, affirming a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, not to grant the applicant a protection visa.

2    In dismissing the proceedings below, the primary judge was not satisfied that there was an arguable case on the merits if the proceeding were reinstated or any relevant error made by the Tribunal and therefore was of the view that there was no utility or useful purpose to be served in reinstating the proceedings.

2.    BACKROUND AND PROCEDURAL HISTORY

3    The applicant is a citizen of Malaysia, of Chinese ethnicity. He first arrived in Australia on 9 July 2004 on a Tourist (Subclass 976) visa and left Australia on 28 July 2004. He returned to Australia on 1 March 2017 as the holder of an Electronic Travel Authority (Subclass 601) visa.

4    On 26 May 2017, the applicant applied for a Protection (Subclass 866) visa (protection visa). He made a number of claims in his protection visa application. First, he came to Australia because of the trouble he experienced as a result of an “incident” on 13 May 1969. Secondly, he experienced violence and threats from a “Malay group” and was told to leave Malaysia as it belonged to Malays. Thirdly, “the Malays” racially discriminated against him and regularly came to his house and workplace. Fourthly, he made a report to the police but was unable to obtain protection or assistance. Other than the biodata page of his passport, the applicant provided no additional documents in support of his protection visa application.

5    On 24 October 2017, the delegate refused to grant the applicant a protection visa. The delegate found the applicant had outlined his situation in minimal detail and with no supporting evidence. The delegate found the applicant would not face persecution because of his ethnicity but, in any event, would be able to avail himself of effective state protection in Malaysia such that he did not face a real chance of serious harm or a real chance of significant harm.

6    On 19 November 2017, the applicant applied to the Tribunal for review of the delegate’s decision. He did not appoint a representative or authorised recipient before the Tribunal, but did provide an email address for correspondence purposes.

7    By a letter dated 24 May 2019 and sent to his nominated email address, the applicant was invited to attend an in-person hearing before the Tribunal scheduled for 9 July 2019 at 12:30pm. That letter stated, among other things, that the applicant was invited to give evidence and present arguments relating to the issues in his case. It also explained that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal, or it may dismiss his application for review without any further consideration of the application or the information before the Tribunal. The letter also provided an email address and telephone number, whereby the applicant could contact the Tribunal if he had any questions. For language assistance, there was a number given for the translating and interpreting service.

8    The applicant did not respond to the hearing invitation or otherwise contact the Tribunal. On 2 July 2019 and 8 July 2019, the Tribunal sent SMS hearing reminders to the applicant to remind him of the scheduled hearing. However, the applicant failed to attend the Tribunal hearing, and at 1:03pm on the scheduled day of the hearing, the Tribunal member declared the hearing a “no show”, having waited for some 30 minutes in case the applicant was running late.

9    On 16 July 2019, the Tribunal made a decision under s 426A(1A) of the Migration Act 1958 (Cth) to affirm the decision of the delegate without taking any further action to enable to the applicant to appear. In so finding, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any reason set out in s 5J of the Migration Act; nor was it satisfied there were substantial grounds for believing there was a real risk the applicant would suffer significant harm.

10    The applicant applied for judicial review in the Federal Circuit Court of the Tribunal’s decision. On 5 September 2019, procedural orders were made listing the matter for a show cause hearing before the primary judge on 23 July 2020. The applicant, however, failed to attend that hearing, and the primary judge dismissed the application for judicial review, pursuant to r 13.03C(1)(c) of the FCC Rules.

11    On 19 August 2020, the applicant filed an application seeking to set aside the dismissal orders made on 23 July 2020 and reinstate his judicial review application, pursuant to r 16.05(2)(a) of the FCC Rules. That application was dismissed by the primary judge on 31 August 2020. In his reasons, the primary judge accepted the applicant’s explanation for his failure to appear at the hearing before the primary judge on 23 July 2020 as being satisfactory, namely, that the applicant had difficulty accessing the hearing via Microsoft Teams.

12    However, the Court held that the applicant had provided no submissions in support of the grounds of his application or explaining why the Tribunal’s decision was the subject of any reasonable argument or error. In any event, the primary judge was not satisfied that the application identified any reasonably arguable case of jurisdictional error for the following reasons.

(1)    With respect to ground 1, alleging that the Tribunal considered the applicant’s case unfairly, the primary judge found that “the Tribunal’s decision to proceed to determine the matter where the applicant failed to appear cannot be said to be unreasonable in the circumstances of this case”.

(2)    With respect to ground 2, alleging that the Tribunal did not consider that the applicant would be harmed after his return to Malaysia due to his Chinese ethnicity, the primary judge found that “the Tribunal did make findings in relation to the applicant’s claim to fear harm by reason of his race, which clearly subsumed the applicant’s Chinese ethnicity”. These findings were open for the Tribunal to find.

(3)    With respect to ground 3, which alleged that the Tribunal did not ask the applicant to provide evidence to support his claims, the primary judge found that the applicant was properly invited to attend the hearing and failed to do so, and therefore no jurisdictional error has been made out.

3.    THE APPLICATION FOR AN EXTENSION OF TIME AND LEAVE TO APPEAL

13    In his draft notice of appeal, the applicant identifies three proposed grounds of appeal, which I discuss below. The Minister filed fulsome and helpful written submissions in advance of the hearing, which the applicant confirmed he had received prior to the hearing. However, the applicant explained to the Court that he had not had the opportunity to have them translated before the hearing. In those circumstances, I asked counsel for the Minister to explain the matters in her written submissions in her oral submissions, so as to ensure that the applicant was appraised of the Minister’s submissions. I also asked that she endeavour to explain the legal principles in plain English, bearing in mind that the applicant did not have legal representation and did not have proficiency in English. The proceedings were conducted with the assistance of an accredited interpreter in Cantonese and English.

14    Having heard the Minister’s submissions, I invited the applicant, who had not filed written submissions before the hearing, to address the Court on any matters he wanted the Court to consider. The applicant confirmed certain matters regarding the proposed grounds of appeal but did not make substantive submissions. The Court notes that the courtroom can be an intimidating and unfamiliar place for a person who is unrepresented to attend and be asked to speak, and is not critical of the fact that the applicant made no submissions. Rather in those circumstances, the Court has ensured that the materials before it were carefully considered, in order to ensure that any possible error is raised.

15    The decision of the primary judge not to set aside the dismissal order were interlocutory in nature, and as such, the applicant required leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Rule 35.13 of the Federal Court Rules 2011 (Cth) required the applicant to file any application for leave to appeal within 14 days after the date on which the orders and judgment appealed from were pronounced, namely 31 August 2020. As a result, any application for leave to appeal was required to be filed on or before 14 September 2020. As the present application was filed on 12 October 2020, and therefore 28 days outside the prescribed period, it is necessary also for the applicant to seek an extension of time within which to file his application for leave to appeal.

16    The principles by which it is determined whether to grant an extension of time and leave to appeal are well established, and are set out in at [25]-[26] of Minister’s submissions, which I gratefully adopt:

The decision to grant an extension of time is a discretionary one. In considering whether to grant an extension of time, there are no mandatory relevant considerations, but the Court will generally consider: the length of the delay; the reasons for the delay; any prejudice to the respondents; and the merit of the proposed appeal. It is for the applicant to establish that there is a proper reason for this Court to exercise the discretion in his favour.

In considering whether leave to appeal should be granted, it must be shown that there is sufficient doubt as to the correctness of the judgment below to warrant reconsideration, and that if the judgment below is assumed to be wrong, substantial injustice would result if leave were refused.

(Footnotes omitted.)

17    The Minister accepted that the applicant’s delay was relatively minor but submitted that the explanation for his delay, namely that he “needed to save money to pay court fees”, was not adequate in the absence of any documentary evidence supporting that assertion. The Minister also accepted that he would suffer no prejudice if time were extended and submitted that it was not relevant for the Court to take into account the fact that the primary judge’s written reasons were published on 13 November 2020, outside the time within which an application for leave to appeal should have been brought.

18    In my view, however, the late publication of written reasons is relevant to the applicant’s delay in filing the application for leave to appeal. However, in the circumstances of this case, I give this consideration little weight, given that no amended application was filed after the written reasons were published, and the applicant did not identify the late publication of written reasons as a reason for his delay in bringing the proceeding. I also would not give any weight to the failure by the applicant to provide documentary evidence in support of his asserted lack of funds if I was satisfied that his proposed grounds of appeal had merit.

19    Significantly, in considering whether the proposed appeal has merit, the Court considers whether the proposed grounds are arguable or sufficiently arguable to warrant the grant of an extension of time. This is generally approached from a reasonably impressionistic perspective, rather than dealing with the merits in a fulsome way, as if this were the appeal itself.

20    The applicant identified three proposed grounds of appeal:

1.     There exi[s]t jurisdictional errors.

2.     My case was not treated fairly.

3.     There exists unfairness.

21    The applicant confirmed at the hearing that grounds 1 and 2 were complaints that the primary judge had failed to find that the Tribunal had failed to properly consider some of his claims or had ignored some of his claims.

22    However, as the Minister submitted, the proposed grounds of appeal are expressed at a high level of generality and do not contain any particulars which might explain them, and no were any oral or written submissions made which might have elaborated upon them. For example, the applicant has not identified the claims which he says were not properly considered or ignored by the Tribunal. Nor has the applicant identified or explained why he says he was not given a full opportunity by the Federal Circuit Court to present his claims. Those deficiencies in the proposed grounds of appeal suffice in themselves to dismiss this application: Przybylowski v Australian Human Rights Commission [2022] FCA 1249 at [18] (Perry J); FEY17 v Minister for Home Affairs [2020] FCA 1014 at [90] (Greenwood J); FKV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1950 at [45] (Collier J).

23    Nor has the applicant provided any evidence in support of his bare assertion that the primary judge failed to give him a full opportunity to represent his claims, and the primary judge’s reasons reveal that the applicant was invited to make submissions in support of the grounds of his application for judicial review but failed to do so.

24    In these circumstances, the applicant has not identified any error in the way in which the primary judge exercised his discretion under r 16.05(2) of the FCC Rules, and none on a careful perusal of the materials are apparent.

25    It follows that the application for an extension of time and leave to appeal must be dismissed.

Associate:

Dated:    20 June 2023