AWV15 v Minister for Immigration and Border Protection

1. The application be refused.
2. The applicants pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TRACEY J: 1 This is an application for an extension of time within which the applicants might file a notice of appeal from a decision of the Federal Circuit Court ("the FCC"). The application is made pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) ("the Rules"). The FCC's decision was handed down on 24 November 2016: see AWV15 v Minister for Immigration and Border Protection [2016] FCCA 3158. The application for an extension of time was filed on 23 December 2016. The application is necessary because r 36.03(a)(i) of the Rules requires a notice of appeal to be filed within 21 days after the date on which the judgment appealed from was pronounced. 2 The Minister opposes the grant of an extension on two grounds: the absence of any explanation for the applicants' delay in filing their notice of appeal; and that the proposed appeal lacks merit. The Minister referred to SZQCV v Minister for Immigration and Citizenship [2012] FCA 91, in which Murphy J, at [18]-[19], cited with approval Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; [1984] FCA 186 at pp 11-13 (Wilcox J) and identified the following factors to which the Court should have regard when considering an application for an extension of time to appeal: (a) satisfaction that it is proper to do so, noting that the prescribed period is not to be ignored. This usually requires an acceptable reason for the delay; (b) any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension; [and] (c) the merits of the appeal. The Minister conceded that there would be no prejudice suffered if the extension were granted. 3 The applicants are citizens of China. They arrived in Australia on 13 February 2014. On 26 February 2014, they applied for Protection (Class XA) visas. AWV15 claimed that he had objected to a proposal that his house be demolished by the government for redevelopment. He had protested against the proposed action and had been threatened by gangs. Later, he had been detained because of public protests which he had made. ADZ15 relied on her husband's claims and made no separate claims for protection. 4 A delegate of the Minister refused the applicants' applications. They sought review of this decision in the Refugee Review Tribunal ("the Tribunal") (now the Administrative Appeals Tribunal). The Tribunal affirmed the delegate's decision. 5 The applicants then applied to the FCC for judicial review of the Tribunal's decision. They did so relying on one ground. It was that: The Tribunal pointed out that my evidence during the interview was vague, rehearsed and contrived and significant elements were internally inconsistent or not plausible. I believed the Tribunal would not accept that I am [a] true refugee in the first place and ignore[d] the weight of the evidence. Otherwise the Tribunal should give me more time to explain. 6 The trial judge applied a very beneficial construction to this ground. She was prepared to accept that it might raise a number of allegations of jurisdictional error on the part of the Tribunal, namely that: the Tribunal had erred in making the adverse credibility findings; the Tribunal's decision was affected by actual or apprehended bias; the Tribunal ignored the weight of the evidence; and the Tribunal had erred by not giving the applicants sufficient time to explain themselves. 7 The trial judge rejected each of these reformulated grounds. She also dealt with some oral submissions made by the applicants including the general complaint that the Tribunal had not treated them "fairly". This claim was also rejected. 8 The applicants' proposed notice of appeal to this Court contains three grounds. They are: 1. The Court failed to take into consideration of [sic] the full impact of the appellant's mental disturbance which was caused by persecution in [the] People's Republic of China; [t]he Appellant would be deprived of medical treatment; 2. The Court failed to take into consideration that the Appellant committed suicides [sic] when suffering persecution in [the] People's Republic of China; 3. The Court failed to take into consideration that the Appellant and his family will be exposed to inhumane treatment and they will be exposed to discrimination in health and employment due to the mental disturbance if they were forced to return to China. 9 As phrased, these grounds appear to allege failure, by the FCC, to give consideration to mental health matters which, in some unexplained way, related to their protection visa claims. 10 AWV15 appeared in person at the hearing of the application. He was assisted by an interpreter. He advised the Court that he was appearing for both himself and his wife. 11 AWV15 was asked on a number of occasions why it was that the applicants' notice of appeal had not been filed within the prescribed time. He appeared confused and offered no explanation. 12 When asked to elaborate on his grounds of appeal, AWV15 said that they had been drafted by a friend who spoke English but that he (AWV15) did not understand them and could not assist the Court to appreciate how these alleged errors arose. 13 Each ground relates in some way to the mental health of one of the applicants. AWV15 had told the Tribunal that his wife had a brain condition and that she had tried to kill herself in China. The Tribunal had considered this claim but noted that there was no further evidence before it concerning the mental health of AZD15 or about how her mental condition would impact on her ability to return to China or how it would affect her thereafter. 14 The FCC referred to these matters but noted that no separate claims had been made by AZD15, relying on these health problems, when applying for a protection visa. 15 To the extent that these grounds can be seen to relate to ADZ15, they do not constitute a proper basis for alleging jurisdictional error on the part of the Tribunal or appealable error on the part of the FCC. The FCC did give consideration to the claims but determined that they did not establish jurisdictional error. 16 I have given careful considerations to the reasons for decision of the Tribunal and those of the trial judge. I am unable to discern any jurisdictional error, made by the Tribunal, or any appealable error made by the FCC. The FCC was obviously conscious of the disabilities under which the applicants laboured and sought to deal as fairly as possible with their claims. This is borne out by the manner in which the trial judge dealt with the grounds advanced by the applicants and her willingness to entertain and deal with additional complaints made in the course of oral submissions. 17 In these circumstances the application for an extension of time should be refused with costs for the reasons advanced by the Minister. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.