AXO15 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-08-07|Before: Mr J, Rares J

The application for an extension of time be dismissed.
The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(REVISED FROM THE TRANSCRIPT) RARES J: 1 This is an application for an extension of six months and 17 days in which to file the applicant's proposed notice of appeal from the decision of the Federal Circuit Court given on 14 August 2017: AXO15 v Minister for Immigration & Anor [2017] FCCA 1918. The applicant filed the application in this Court on 21 March 2018 together with his affidavit in support dated 19 March 2018 and a draft notice of appeal.

The application for an extension of time 7 In the applicant's affidavit in support of his application for an extension of time, he said that he did not agree with the trial judge's decision, wished to further review that in this Court to get "a more fair decision", and that, due to his financial hardship, he had delayed filing the notice of appeal because, he claimed, he could not afford the application fee within the required time. He sought that the Court consider his "difficult situation" and grant the extension. 8 The applicant provided no evidence of his financial circumstances or of any application to the Court or to a registrar to excuse him from having to pay any relevant filing fees, nor did he provide any evidence of paying any filing fee he had been required to pay or how he may have come to pay it.

The trial judge's decision 9 Before the trial judge, the Minister disclosed that, on 7 December 2015, a certificate had been signed by the Assistant Director, Protection and Processing Administration, New South Wales Onshore Protection purportedly pursuant to s 438(1)(a) of the Migration Act 1958 (Cth). The material to which the certificate related consisted of internal file notes identifying, substantively, that the Federal Circuit Court, by consent, had remitted the matter to the then Refugee Review Tribunal to be heard according to law and included a tax invoice receipt. 10 The issue of such a certificate to certify in writing that the disclosure of any matter contained in those documents was information that would be contrary to the public interest, particularly by a senior officer of the Department, was a plain abuse of the power. The documents were already the subject of an order made in public by the Federal Circuit Court by consent of the Minister. It is inconceivable how any person in the position of the certifier could have granted such a certificate honestly or properly. Its issue was an abuse of the power. The solicitor for the Minister has said today that the Departmental policy about the grant of such certificates has been rewritten, no doubt as a result of scrutiny by the Courts, such as the decision of Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 and subsequent decisions: see also what I said in SZTGS v Minister for Immigration and Border Protection [2018] FCA 329 at [5]-[12]. 11 The trial judge heard the application before him as a final hearing. He dealt with the eight asserted grounds of review in the application below that, in substance, challenged the credibility findings of the Tribunal. The grounds concentrated on the applicant's alleged devotion to, and practice of, the Tao religion and the alleged harsh persecution of that religion's adherents in China. 12 His Honour found that, in substance, the Tribunal had correctly identified the applicant's claims, considered them and rejected them on bases that were not susceptible of judicial review. I see no arguable error in the way in which his Honour dismissed what were substantively attempts in the grounds put below to seek merits review. His Honour also noted that the documents the subject of the improperly issued s 438 certificate could not possibly have made any difference to the outcome of the proceedings below. I agree.

The proposed appeal 13 In his draft notice of appeal, the applicant asserted that, first, both the Tribunal and trial judge failed to consider his supporting documents, without identifying what those documents might be or in what way any such failure had a relevant effect on the validity of the Tribunal's decision, secondly, he was a Chinese citizen and, were he to be returned to China, his commitment to Taoism would leave him in a position where he would face persecution by the Chinese Government because of his beliefs, thirdly, the Tribunal and the trial judge did not consider his fear of persecution were he returned to China, and, fourthly, the Tribunal's decision about his creditworthiness was groundless and affected his dignity, faith and integrity as a whole. 14 None of those proposed grounds identified any intelligible basis on which it could be said that the Tribunal made a jurisdictional error or that the trial judge erred in dismissing the application below. Although the proposed grounds do not mirror exactly the grounds of review before his Honour, they are more synthesised yet reflect the same fundamental challenges in respect of the Tribunal's credibility-based findings, including those relating to the applicant's alleged Taoist beliefs.

Consideration 15 An application for an extension of time in which to file an appeal or leave to appeal challenges a respondent's vested right to retain 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. 16 In addition, the criteria for granting leave to appeal require an applicant to establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that 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. 17 In my opinion, the applicant has given no satisfactory explanation of his failure to file his notice of appeal in accordance with r 36.03 of the Federal Court Rules 2011: i.e. within 21 days of the trial judge's decision. The delay of six and a half months is significant. The proposed grounds of appeal reveal nothing that could possibly justify the grant of an extension of time, let alone leave to appeal. They are manifestly hopeless.

Conclusion 18 For these reasons, I dismiss the application for an extension of time with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

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