AAB16 v Minister for Immigration and Border Protection

The FCCA proceedings summarised 12 The applicant sought judicial review of the Tribunal's decision. The grounds of the judicial review application, which was filed on 4 January 2016, were as follows: 1. I am not satisfied with the Tribunal Member's decision as the Tribunal Member had made an error of law by heavily relying on its arbitrary views towards my claims and by failing or ignoring to give me justice according to the scope of complementary protection visa. 2. I argue that the Tribunal Member has not made a well-balanced decision in my case and I believe the Tribunal Member made a legal error in concluding that there is no real risk of being banned upon my return to Nepal when there was no evidence before it to that effect. 3. It is argued that the Tribunal Member completely ignored my circumstances and failed to act according to law. 13 The FCCA convened a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The primary judge delivered an ex tempore judgment in which he ordered that the judicial review application be dismissed pursuant to that rule. The primary judge's reasons for taking his course may be summarised as follows: (a) the applicant had failed to raise any argument of jurisdictional error on the part of the Tribunal and the Tribunal's adverse credibility findings were open to it on the evidence, as also were the Tribunal's adverse findings concerning the applicant's documentary evidence; (b) in relation to ground 1, the FCCA found that the applicant's dissatisfaction with the Tribunal's decision did not identify any jurisdictional error and the primary judge also found that there was nothing in the material before the FCCA which established any procedural unfairness, with the consequence that there was no jurisdictional error raised by this ground; (c) in relation to ground 2, no arguable jurisdictional error was made out in circumstances where the primary judge found that the "Tribunal's decision appears to be an orthodox review of the applicant's claims and evidence" and it was open to the Tribunal to make adverse credit findings. The applicant's contention that there was no evidence to support those findings was rejected as "not correct"; and (d) in relation to ground 3, the primary judge found that no arguable jurisdictional error was raised by the applicant's claim that the Tribunal had failed to address the applicant's claims and evidence. 14 After referring to the need for caution in summarily dismissing such an application (citing Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118), the primary judge summarily dismissed the application after adding that, in substance, the three grounds of judicial review invited "an impermissible merits review and did not disclose any arguable jurisdictional error".

The parties' submissions summarised 15 The Minister submitted that the applicant had failed adequately to explain why he did not commence his proceeding within time. He submitted that it was the applicant's responsibility to ascertain his rights of appeal and that it was insufficient for him to depose that he thought the deadline was 28 days from the date of judgment. 16 I do not accept that submission. I am prepared to proceed on the basis that the applicant, who represented himself, was not aware of the deadline notwithstanding that, as the summary of background facts above reveals, he is no stranger to litigation in this country. His delay was for a relatively limited period of 14 days. 17 The more important consideration in determining whether time should be extended relates to the merits of the proposed appeal. As the Full Court held in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397, in considering whether to grant leave to appeal from an interlocutory judgment, the applicant must show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, in addition, if it is assumed that the primary judgment is wrong, would substantial injustice be suffered by the applicant if leave to appeal were refused. I accept the Minister's submission that these principles are relevant to a consideration of whether or not to extend time in order for the applicant to seek leave to appeal. 18 The draft notice of appeal identifies five proposed grounds (without alteration): 1. The Federal Circuit Court Judge erred by failing to find that the Tribunal Member made an error of law in that the Tribunal Member has deprived me of natural justice and fairness by failing to carry out its task constructively. 2. I argue that the Tribunal Member has not made a well-balanced decision by heavily relying on its arbitrary views towards my claims and by failing or ignoring to give me justice according to the scope of complementary protection visa. 3. It is contended that the Tribunal Member erred by overlooking my claims on the issue of my suffering from the Maoists in concluding that I had no political interest or opinion having regard to the material upon which it relied, that reliance being irrational and unreasonable. I claim the truth that I am a businessman and I am a victim of extortion by the criminals including the Maoists. 4. The Tribunal Member did not want to believe me because the Member appeared to establish disbelief of my credibility and ignored my entire evidence in which my case was taken in breach of the rules of natural justice. 5. It is unfair and I am a victim of the Tribunal Member's arbitrary views and premature mind towards my claims. 19 In this Court, the applicant failed to file and serve an outline of submissions in support of his application, in non-compliance with orders dated 30 August 2016. 20 When the matter was called on for hearing, the applicant appeared for himself and was assisted by an interpreter. The applicant's oral submissions may be summarised as follows. As to ground 1, he submitted that he had not been given time to provide documents to the Tribunal. He then confirmed, however, that the documents he obtained from Nepal had in fact been given to the Tribunal in relation to his second application for a protection visa. It is evident from [36] of the Tribunal's statement of decision and reasons that the four documents had been received by the Tribunal and were considered by it. There may have been some confusion in the applicant's submission between the previous Tribunal hearing and the latest hearing. 21 The applicant confirmed that ground 2 overlapped with ground 1 and he did not raise any new submission. 22 As to ground 3, the applicant explained that his complaint was that the Tribunal was wrong not to accept his evidence regarding his political role and participation. 23 As to ground 4 , the applicant submitted that he had been denied procedural fairness because his case had not been considered properly and he asked the Court to "do justice". 24 As to ground 5, the applicant submitted that he had come to Australia in order to have his human rights protected. 25 The Minister submitted that grounds 2, 3 and 4 of the draft notice of appeal were in similar terms to the judicial review grounds which had been rejected below and that these grounds had insufficient prospects to warrant time being extended. The Minister relied upon the primary judge's reasons for rejecting these grounds at [12]-[14] of his Honour's reasons for decision. 26 As to ground 1 of the proposed notice of appeal, the Minister submitted that this proposed ground substantially overlaps with the applicant's claim below that he had been denied procedural fairness, a claim which was rejected by the primary judge. The Minister relied upon the primary judge's reasons for rejecting this ground. Alternatively, to the extent that this ground covered territory which was not raised below, the Minister submitted that the applicant required leave to raise the ground, which should not be granted because of its lack of merit. 27 As to proposed ground 5, the Minister submitted that it appeared to involve an allegation of bias on the part of the Tribunal, a claim which had not been raised below which meant the applicant also required leave to raise it for the first time. The Minister submitted that it lacked sufficient merit to warrant the grant of such leave, noting in particular that the mere fact that the Tribunal had made adverse findings against the applicant did not of itself reveal bias or prejudgment and there was nothing to suggest that the Tribunal had not dealt with the application for review impartially and objectively.

Consideration 28 The Minister's submissions should be accepted and the application for an extension of time dismissed. It is true that the primary judge's reasons for judgment are not extensive but the applicant did not claim that they were so inadequate as to fall short of a proper discharge of the primary judge's judicial function. Nor did the applicant identify any arguable appealable error in the primary judge's reasoning for rejecting each of the three grounds raised in his judicial review application. 29 As is apparent from the summary above, the primary reason why the applicant failed before the Tribunal related to the adverse findings it made regarding his credibility. The Tribunal explained at some length why the applicant's claims relating to his political activities were not accepted, including by reference to the Tribunal's findings that the applicant's knowledge of the relevant political party was "minimal at best and not of any such level as to demonstrate any involvement or interests". The Tribunal also relied upon the fact that the applicant's claimed involvement in politics had ended almost 13 or 14 years ago. The Tribunal explained why it did not accept the veracity of the documents relied upon by the applicant. It is clear from [36] and [52] that the Tribunal did consider the documentary material and explained why it did not accept that the material was genuine and reliable. 30 With specific reference to proposed ground 4, and the applicant's oral submission that the Tribunal had not taken into account conditions in his country of origin at the time of its decision, this claim is unsupported by the Tribunal's reasons. In particular, the Tribunal expressly stated at [27] that the political situation in Nepal had changed from the circumstances which existed when the applicant fled 13 or 14 years ago. 31 The proposed new grounds not raised below are not sufficiently strong to extend time and in his oral submissions the applicant added nothing of substance in respect of those grounds to indicate that they were arguable. 32 None of the proposed grounds of appeal has any arguable substance. The applicant has failed to persuade me, nor am I satisfied by my own review of relevant matters, that time should be extended. It is evident that the applicant is unhappy with the Tribunal's decision as well as the FCCA's summary dismissal of his judicial review case. I am satisfied, however, that his dissatisfaction fundamentally relates to the merits of the Tribunal's decision. 33 He has been unable to identify any arguable jurisdictional error in that decision nor any arguable appealable error in relation to the FCCA's decision.

Conclusion 34 For these reasons, the application for extension of time and leave to appeal should be dismissed, with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.