ASA17 v Minister for Home Affairs

Federal Court of Australia|2019-02-19|Before: Rares J

The application for an extension of time be dismissed.
The name of the first respondent be amended to Minister for Home Affairs.
The applicant pay the first respondent's costs fixed in the sum of $1,756. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RARES J: 1 This is an application for an extension of time in which to file a notice of appeal from the decision of the Federal Circuit Court of Australia given on 24 August 2018, refusing the applicant Constitutional writ relief in respect of the decision of the Immigration Assessment Authority given on 31 January 2017, to affirm the Minister's delegate's decision not to grant the applicant a safe haven enterprise, or protection, visa: ASA17 v Minister for Immigration [2018] FCCA 2432. 2 The applicant did not appear today when the matter was called outside the Court, and the Court has twice attempted to reach him on the mobile telephone number listed in his application for an extension of time. On each of the two occasions this morning, the number rang through to voicemail. The Minister seeks orders dismissing the application with costs.

Background 3 The applicant filed the application on 19 September 2018, together with his affidavit in support, and a draft notice of appeal. The draft notice of appeal, however, is bereft of detail as to any reason why, beyond bare assertion, the appeal ought be allowed. The grounds of appeal are simply that, his Honour: (a) "did not follow the proper procedure and the applicable law related to the [applicant's] Judicial Review Application"; (b) denied the applicant procedural fairness by dismissing his application; and (c) improperly exercised his powers "conferred by the enactment and applicable law". 4 In the application, the applicant explained that he had been living in Punchbowl, a suburb of Sydney, since June 2018, and had attempted to file his notice of appeal on 12 September 2018, which would have been within 21 days of his Honour's orders. However, he was informed that he was not able to lodge the application with the New South Wales Registry, but had to do so in Queensland where the trial judge had heard the proceeding below, and that it had taken him more time to do so. Although the applicant's affidavit in support did not expressly affirm those as his reasons for the late filing, had that been the only matter requiring consideration, I would have been likely to have granted an extension were there sufficient merit in the proposed appeal. 5 The applicant had lodged his application for the protection visa on 20 May 2016. He claimed to fear harm because he had been the president of the Bangladesh National Party (BNP) Youth Party in the area of Bangladesh in which he lived. On 14 December 2016, the delegate, having interviewed him, refused to grant the visa.

The Authority's decision 6 The Authority did not accept the applicant's claims for a protection visa. There was no further information obtained, or received, by the Authority beyond what was before the delegate. The Authority recorded the applicant's claims in detail and then proceeded to consider them separately. It found that, in certain instances, there were fabrications or to the extent that it accepted other aspects of his claim, insufficient evidence to support the grant of a protection visa. The Authority said that it had listened to the recording of the applicant's entry interview made on 10 March 2013 that had lasted over two and a quarter hours, at which the applicant had been assisted by a Bengali interpreter. 7 It is not necessary, for the purpose of considering this application, to elaborate the applicant's claims in detail. Suffice to say that the Authority did not accept that he would be perceived as a high level BNP political figure. It found that the applicant had ceased to hold a position as president of the BNP Youth Party over 10 years before the Authority's decision. 8 The Authority found that the applicant had fabricated his account to it of his having been attacked by about 10 to 12 people in, what he variously had called a coffee shop, a tea stall and a grocery shop that sold tea. He claimed that the persons attacked him with a hockey stick one by one, that he was unable to stand and fell to the ground. The Authority noted that the applicant had stated in his entry interview that he had not been physically assaulted during the incident, although in his protection visa interview and statement of claims he had asserted that he had been attacked, beaten with fists and a hockey stick. The Authority found implausible that, had such an attack occurred, the applicant had received no cuts or bruises. It also relied on the fundamental discrepancy between his answers at the protection visa interview about how the attack occurred and what happened during it, with his claims about the same event in the hearing before the Authority. 9 The Authority was prepared to accept that in 2012, before coming Australia, on his return from Malaysia to Bangladesh, the applicant had been subjected to demands for money from Awami League supporters but in each of those he had not been harmed. The Awami League was, at one stage, the opposition and became the current governing party in Bangladesh. But the Authority was not satisfied that the applicant had been the victim of violence, as he had claimed. It found that the essential and significant reason any demands for money that the applicant had received from Awami League supporters was the perception that he had money, and those persons, being in a position of power, had exploited that power against an opponent, the applicant, who had returned from overseas. 10 The Authority had also rejected other claims by the applicant that he had been harassed or threatened in Malaysia by Awami League members, and that he had been unable to vote earlier in Bangladeshi elections. It did not accept that the applicant had gone into hiding after the alleged assault. It did not accept that he had experienced any physical harm, felt threatened or gone into hiding because of demands for money in the past. It found that there was no indication that significant amounts of money had been demanded of the applicant, or that he had actually paid out any money as a consequence of those demands. The Authority accepted that the applicant might be subject to similar demands were he to be returned to Bangladesh from Australia because of a perception that he might have money. It was satisfied that any such behaviour would not threaten his capacity to subsist and would not result in serious physical harm or treatment that might be regarded as serious harm for the purposes of s 36(2)(a) of the Migration Act 1958 (Cth), or of significant harm for the purposes of s 36(2)(aa). It found that there was no real chance that the applicant would experience serious or significant harm in Bangladesh in the future on either basis. It accepted that he had left Bangladesh illegally without a valid passport, and, if returned, might be perceived as a failed asylum seeker. But, it found, based on country information, that there was no real chance that he would suffer serious or significant harm on return to Bangladesh because of that illegality. 11 Ultimately, the Authority was not satisfied that the applicant faced a real chance of any harm as a returning asylum seeker who had departed unlawfully, or that there was any real risk that he would suffer significant harm as a result of demands for money, based on his perceived status on his return. Accordingly it affirmed the delegate's decision.

The proceeding before the trial judge 12 The applicant appeared before his Honour in Brisbane in person on 24 August 2018, apparently despite his address being in Punchbowl, at least by reference to the date of his draft notice of appeal. 13 His Honour reviewed the Authority's reasons. The sole ground in the application was that the Authority had erred in law in making its decision. The trial judge found that, because of that being the ground, the application was somehow liable to be dismissed "on that basis alone". His Honour referred to a decision of Siopis J who had dismissed an appeal from a decision of the Federal Circuit Court in WZATH v Minister for Immigration and Border Protection [2014] FCA 969. 14 His Honour's reasons did not record whether or not the applicant made any submissions to him or explained the ground at all. His Honour's reasons did not explain how, the mere statement of a ground for review in the above form rendered the application liable to be dismissed "on that basis alone" and to that extent, the reasons are not adequate. 15 However, his Honour also explained that, in his view, the Authority had not overlooked or misunderstood any of the applicant's claims and it had dealt fairly with the material before it. He found that the Authority had not failed to consider any material evidence and had not asked itself any inappropriate question or applied an incorrect test when undertaking its statutory task. The trial judge noted that the applicant had not sought to submit any new information to the Authority. He found that, in all the circumstances, no jurisdictional error was made out and, accordingly, dismissed the application on a final basis.

Consideration 16 An application for an extension of time in which to file an appeal or leave to appeal challenges the respondent's vested right to obtain the benefit of the judgment from which the appeal is sought, 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 said had been adopted by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F, 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. 17 In addition, the criteria for granting leave to appeal that an applicant must establish are that the decision in question is attended with sufficient doubt to warrant the grant of leave and substantial injustice would result from a refusal of leave: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. 18 As I have noted, the draft notice of appeal on which the applicant seeks to rely, is unparticularised. Having reviewed the Authority's decision and the trial judge's reasons, I am unable to see a basis for concluding that the proposed grounds of appeal have any realistic prospect of success. 19 I am satisfied by the evidence from the solicitor for the Minister, Ms Helsdon, who also appeared before his Honour below, that the applicant has not substantively engaged in supporting his application for an extension of time since he filed it. She gave evidence that she filed a notice of address for service on behalf of her firm on 26 October 2010 that she sent to the applicant's email address on 12 November 2018. 20 On 1 November 2018, Ms Helsdon sent to the applicant, by registered post, the bundle of documents required by the direction of the Registrar made on 18 October 2018, comprising the Authority's decision, the trial judge's order and reasons, and did not receive any return to sender advice. Ms Helsdon also received a copy of the email sent on 7 January 2019 from the National Operations team notifying the parties of the listing today. On 12 February 2019, Ms Helsdon's firm filed and served the Minister's submissions, sending them to the applicant's email address and by registered post to his address given in his application. Again, Ms Helsdon did not receive any return to sender advice. Ms Helsdon gave evidence before me that she had received no contact at all from the applicant since he filed his application for an extension of time and the supporting documents.

Conclusion 21 In those circumstances, and having regard to the non-appearance of the applicant today, I am satisfied that it is appropriate to dismiss the application for an extension of time on the basis that, first, the grounds in the draft notice of appeal lodged pursuant to it would have no realistic prospect of success, and, secondly, the applicant is in default of appearance today. For these reasons, the application for an extension of time must be dismissed. The applicant must pay the Minister's costs fixed in the sum of $1,756. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

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