BEN15 v Minister for Immigration and Border Protection

2.1 The visa application and the delegate's decision 2 The applicant is a citizen of the People's Republic of China and arrived in Australia on 11 February 2014. She applied for a protection visa on 5 March 2014. 3 The Tribunal summarised the applicant's claim as detailed in her visa application as follows: She claimed that she feared harm in China because her husband, who was having an affair with another woman, set her up on false drug charges. She is afraid that if she returns she will be gaoled or executed because a bag of heroin was found in her car. She claimed that with the assistance of his friend, the local chief of police, her husband arranged for her to leave China and travel to Australia. She later realised that his plan all along was to get her out of the country so that he could seize her property and stay with his mistress. 4 The applicant was apparently invited to attend an interview with the delegate, but did not do so. On 18 June 2014, the delegate refused to grant the applicant the protection visa.

2.2 The Tribunal decision 5 The applicant sought review of the delegate's decision in the Tribunal. She provided no further written information in support of her application for review but attended a hearing before the Tribunal on 20 May 2015 and gave evidence with the assistance of an interpreter. 6 On 22 May 2015, the Tribunal affirmed the decision not to grant the applicant a protection visa. 7 In its reasons, the Tribunal noted that the issues to be determined were whether the applicant had a well-founded fear of persecution in China, or whether there was a real risk that she would suffer significant harm if she was returned to China. 8 The Tribunal considered that the applicant's account of the circumstances in which she fears returning to China were not credible. It found that her account contains "significant inconsistencies and gaps, is inherently implausible, and she appeared to change her evidence from time to time in a manner suggesting that she would say anything regardless of whether it was the truth." After analysing the applicant's evidence and making findings as to specific deficiencies and inconsistencies in her claims, the Tribunal concluded: In the light of the numerous problems in the applicant's evidence I have concluded that her entire account is not credible and should be rejected. I do not accept that the applicant is an innocent person who has been framed on drug charges by her husband and his friend the police chief so that she could be sent out of China purportedly for her protection. I do not accept that she faces any penalty in relation to drug offences on return that would constitute persecution or significant harm, or that she faces persecution or significant harm in connection with the claimed breakdown of her relationship with her husband. There is no credible evidence before me to support a conclusion that the applicant faces harm of any kind on return to China, including the unspecified physical or psychological harm that she claimed to fear from her husband. I am not satisfied that she has a well-founded fear of persecution under the Refugees Convention; or that there is a real risk that she will suffer significant harm for the purposes of complementary protection. 9 Given those findings, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention, and found therefore that the applicant did not satisfy the criterion for a protection visa set out in s 36(2)(a) of the Act. Nor, given those findings, was the Tribunal satisfied in the alternative that Australia owed complementary protection obligations so as to satisfy the criterion for a protection visa in s 36(2)(aa). Accordingly the Tribunal refused to grant a protection visa under s 65 of the Act.

2.3 The decision of the Federal Circuit Court 10 The applicant filed an application for an extension of time and judicial review of the Tribunal's decision in the Federal Circuit Court on 29 June 2015. The grounds of the application for the extension of time were as follows: I WAS MISUNDERSTANDING. I THOUGHT THE DATE OF DECISION IS SAME AS THE DATE OF NOTIFICATION. (errors in original.) 11 The grounds of the application for judicial review were as follows: It was emphasized that there would be critical documents coming from overseas which can be used as evidence of the genuineness of my claim, however RRT did not treat us with fairness and justice, because the tribunal would not accept that I am true refugees at first. (errors in original.) 12 The application was listed for a first Court date before a Registrar of the Federal Circuit Court on 16 July 2015. The applicant failed to appear and the Registrar made orders that: 1. The application is dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) due to the failure of the applicant to appear. 2. The first respondent is to provide the applicant with written notice of today's orders and inform the applicant of the applicant's right under rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) within 5 days. 3. The applicant is to pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $500.00 13 Rule 13.03C of the FCC Rules, pursuant to which the application was dismissed, relevantly provides that: (1) If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following: … (c) if the absent party is an applicant - dismiss the application;… 14 On 8 September 2015, the applicant filed an application in a case. The applicant stated the grounds of the application under the heading "Orders sought", namely: 1. The Refugee Review Tribunal (RRT) made an error of law in my case. I am under serious risk of persecution, which was undervalued by the RRT. 2. I didn't receive any notification regarding 16/07/2015 first court. Federal Circuit Court has the responsibility to make sure that I have been informed to attend the first court. (errors in original.) 15 While the application did not, in its terms, seek an order that the orders of 16 July 2015 be set aside under r 16.05, the primary judge appropriately treated the application as seeking that relief and proceeded on that basis (reasons below at [3]). That rule relevantly provides that: (1) The Court may vary or set aside its judgment or order before it has been entered. (2) The Court may vary or set aside its judgment or order after it has been entered if: a. the order is made in the absence of a party;… 16 On 28 September 2015, the Federal Circuit Court heard and dismissed the applicant's application. 17 The primary judge correctly identified the principles which govern the Court's exercise of power under r 16.05(2) as discussed by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7], namely: In circumstances where… a proceeding has been dismissed in a party's absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are: (a) whether there was a reasonable excuse for the party's absence from the hearing in which the proceeding was struck out; (b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant; (c) whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]: The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement. (emphasis added.) 18 As to the first consideration, the primary judge accepted the applicant's evidence that she did not receive notification from the Court of the first court date (reasons at [6]). Furthermore, the primary judge gave no weight to the delay in the filing of the applicant's application in a case to set aside the Registrar's orders and considered that there was no prejudice to the Minister if the orders were set aside (reasons below at [19]-[20]). 19 As to the question of whether the substantive application would have reasonable prospects of success if the Registrar's orders were set aside, his Honour noted the additional complexity arising from the applicant's failure to file her initial application challenging the Tribunal's decision within the 35 day period prescribed by s 477(1) of the Act. However, that delay being only three days, the primary judge did not consider that there was any serious prospect that the delay alone would cause the Court not to extend time if the Court were otherwise satisfied that the applicant's challenge would have some merit. 20 The issue of whether the proceedings challenging the Tribunal's decision should be reinstated therefore turned upon the question of whether those proceedings had any reasonable prospects of success. In this regard, the primary judge held at [17]-[18] that: The applicant understood the ground [of judicial review against the Tribunal's decision] to contain two elements. The first is that she has sought information from China that would help her case. The applicant was unable to tell me what information she has sought, other than to refer to "certain certificates". The applicant indicated that she intended to present that information to the Court. She confirmed, however, that she did not mention to the Tribunal that these documents were coming from overseas. This cannot arguably raise any meritorious ground of jurisdictional error by the Tribunal, given that the applicant did not inform the Tribunal that she was expecting to obtain documents from overseas that are relevant to her claim. The second element of the ground contained in the application which I understood the applicant to make is the contention that the Tribunal did not treat the applicant fairly or with justice because the Tribunal did not accept the applicant was a true refugee. I asked the applicant whether there was any other reason why she claimed the Tribunal did not treat her fairly or with justice but the applicant said there was no other reason. This too cannot arguably raise a meritorious ground of jurisdictional error by the Tribunal. That the Tribunal did not accept the applicant's claim for protection cannot by itself arguably raise any jurisdictional error. In my opinion it is beyond argument that it was reasonably open to the Tribunal not to accept the applicant as a witness of truth for the reasons it gave and to accordingly affirm the delegate's decision. 21 The Federal Circuit Court therefore dismissed the application to reinstate the proceedings under r 16.05(2) effectively on the ground that there was no utility in reinstating them where that challenge had no real prospect of success.

2.4 Appeal to this Court 22 Before this Court, the grounds for the application for an extension of time and leave to appeal are in the same terms as those filed in the applicant's application in a case before the Federal Circuit Court, namely that: 1. The Refugee Review Tribunal (RRT) made an error of law in my case. I am under the serious risk of persecution, which was undervalued by the RRT. 2. I didn't receive any notification regarding 16/07/2015 first court. Federal Circuit Court has the responsibility to make sure that I have been informed to attend the first court. (errors in original.) 23 The applicant seeks that the decision of the Tribunal be set aside, that the case be remitted back to the Tribunal for reconsideration, and that the respondents pay the costs of the applicant. 24 In the draft notice of appeal, the proposed grounds of appeal and the orders sought are in the same terms as those identified above in the application for an extension of time and leave to appeal.

3. CONSIDERATION 25 Orders were made for the filing of submissions in advance of the hearing. The Minister filed written submissions in accordance with the orders and made careful oral submissions at the hearing. The applicant did not file any submissions in advance of the hearing but, after a short adjournment to allow her to consider what submissions she would like to make, made brief oral submissions with the assistance of an interpreter in English and Mandarin. 26 In this Court, it will be recalled that the applicant seeks an extension of time and leave to appeal the decision of the Federal Circuit Court. Leave to appeal the decision below is required because an order dismissing an application by the Federal Circuit Court to reinstate the proceedings under r 16.05(2) of the FCC Rules is interlocutory in nature. An extension of time within which to seek leave to appeal is required because r 35.13 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) relevantly provides that an application for leave to appeal must be filed within 14 days after the date on which judgment was pronounced or the order made. As the Federal Circuit Court delivered judgment on 28 September 2015, the applicant was required to file an application for leave to appeal by 12 October 2015. The applicant's application was filed on 26 November 2016, six weeks after the time period prescribed by r 35.13 had lapsed. 27 The principles governing the exercise of discretion to grant an extension of time for leave to appeal require a consideration of such matters as the length of delay, any explanation offered for the delay, whether the respondent would be prejudiced by the grant of an extension and the merits of the proposed appeal: see SZSPR v Minister for Immigration and Border Protection [2013] FCA 1210; (2013) 139 ALD 109 at 113 [16]; BZACZ v Minister for Immigration and Border Protection [2013] FCA 1230; (2013) 139 ALR 140 at 143 [23]. 28 In this case, as the Minister submitted, the applicant's delay in filing the application is unexplained. Nonetheless, the Minister opposed the grant of an extension of time on the ground that there is no merit to the applicant's proposed grounds of appeal: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]. If that submission is accepted, there would be no injustice in dismissing the application for an extension of time, as the Minister also submitted. 29 In my view, there is no merit in the application for an extension of time within which to seek leave to appeal. Specifically, in my view no error is disclosed in the reasons of the primary judge for dismissing the application to reinstate the proceedings under rule 16.05(2) of the FCC Rules. 30 First, in her submissions the applicant did not take issue with the primary judge's finding that she had told him that she did not inform the Tribunal that she was waiting for documents from China. Furthermore, while the applicant said that she had a language problem and did not know how to go about these kinds of things, she also accepted that she had an interpreter before the Tribunal. Nor was there any evidence before the primary judge to suggest that the interpretation was deficient. The applicant has not therefore identified any error in the primary judge's finding that the Tribunal did not fall into error by failing to wait for documents from the applicant in circumstances where the applicant failed to mention to the Tribunal that she was expecting documents from overseas that were relevant to her claim. 31 Secondly, no error is disclosed in the primary judge's rejection of the ground that the Tribunal failed to treat the applicant fairly or with justice because it did not accept that she was a true refugee. As the primary judge held, that ground takes issue with the merits of the Tribunal's decision not to grant her a visa which the Court has no power to consider. Similarly, at the hearing of her application before this Court, the applicant made oral submissions as to her concern that she would be harmed if returned to China. In substance the applicant expressed her disagreement with the Tribunal's decision. In this regard, as I explained at the hearing, neither this Court nor the Federal Circuit Court has the power to grant a visa or to decide whether a visa should have been granted by the Tribunal on the basis of the evidence. The jurisdiction of the Federal Circuit Court is limited to considering only whether the Tribunal's decision was made lawfully under the Act including whether the Tribunal acted in a procedurally fair manner and properly construed and applied the statutory criteria for a visa, that is, whether the Tribunal's decision is invalid by reason of a jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127; [2009] HCA 39 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required on an appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth) to consider whether there is error in the decision of the Court below. As such, I am also unable to consider whether on the evidence the applicant satisfies the criteria for the grant of a protection visa. 32 Finally, while the applicant made submissions regarding her delay in instituting the proceedings in the Federal Circuit Court challenging the Tribunal's decision, the primary judge accepted the reasons which she gave for that delay. The explanation for that delay was not therefore a reason why the applicant was unsuccessful in reinstating the proceedings. The reason why she was unsuccessful before the primary judge was his Honour's finding that her substantive challenge to the Tribunal's decision had no merit. For the reasons I have already given, I do not consider that the primary judge fell into error in so finding.

4. Conclusion 33 For these reasons, the application for an extension of time within which to seek leave to appeal is dismissed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.