BIZ16 v Minister for Immigration and Border Protection

Background 2 The applicants are husband and wife. They are citizens of Fiji. The applicants' claims for protection were summarised by the Tribunal at [10] - [16] of its Decision Record. The reference to "the applicant" in those passages is to the first applicant in the present application: 10. In his written Protection visa application, the applicant husband claimed that he left Fiji because he cannot stand being treated the way he had been and it has also affected his wife and child; his wife having been questioned many times and his daughter has been called names and bullied because of what he went through. His fear has caused sleepless nights and restless days and it has led to his losing his appetite. Looking at soldiers has almost led him to commit suicide. His workplace has been watched by police and the military because of the nature of the work. The applicant husband claimed he experienced physical, mental and spiritual harm to such an extent that he was not able to control himself. He was verbally abused all the time. After finding out that he was an IT specialist, the encounters between him and the military deteriorated and he was asked deeper questions in regard to the type of job he does. His laptop, phone and other equipment were confiscated. He had to report to them at gunpoint on one occasion. He was unable to report these activities to the police because they linked to the military. 11. The applicant fears that if he goes back to Fiji he will be severely tormented. He claims that IT workers will be targeted because they can communicate with the world in a matter of seconds. He will never be allowed to go overseas again. 12. The applicant claims that his family is well acquainted with the SDL Party, which was the ruling party prior to the coup. In Australia he has been a member of the Fiji Democracy and Freedom Movement. As such, he will lose his job and contacts. 13. The applicant claims that both the military and police are terrorising and threatening people who are against them or who they think are against them. A security company called Homelink Security, members of whom are ex-military personnel, would love to torment him because they are aware that he is one of those who spread news about their activities at checkpoints and what they do in private to people they torment. Most of what they do is done secretly where people cannot witness the actions. Homelink Security really want to know who is spreading the news. 14. The applicant claims this harm will occur to him is because: a. the country is run by an illegal government and it wants to torment and destroy people who do not agree with its policies. b. he and his family are members of the SDL party which was in power prior to the coup. c. in Australia he is a registered member of the Fiji Democratic and Freedom Movement and it is the only organisation that openly expressed its stance against the military regime. d. they have disapproved of the Constitution because it lacks transparency. e. they speculated about the lies about the consultation process and the numbers involved in the process regarding the new Constitution. 15. The applicant claimed that the authorities of Fiji will not protect him because the military and police have lost their status as the defender of the land and the people and guardians of the law. They have done this by abrogating the Constitution and overthrowing the Government and the people. The Government of the day makes its own laws and anyone going against them are victimised. He claims he cannot be protected and his safety cannot be guaranteed. 16. At interview with the Department's delegate, he raised further claims that two of his colleagues obtained and circulated the salaries of the higher ranked civil servants and Ministers. An investigation was carried out and it was found that two of his colleagues were responsible. Their employment was terminated. The applicant and other staff were interviewed as part of the investigation in October 2013. He thought he may have been targeted because he was a senior employee. 3 The first applicant's colleagues referred to in [16] of the Decision Record were employees of Fiji Post. Before the Tribunal, the first applicant claimed that he, too, had extracted data from the IT system at Fiji Post about the salaries of the CEO and senior managers.

The Tribunal 4 In its Decision Record, the Tribunal stated that, early in the hearing, it became apparent that there were some significant differences between the first applicant's written and oral evidence presented at the Tribunal hearing, and between the evidence provided by the first applicant at his interview with the delegate and at the hearing before the Tribunal. The Tribunal recorded that it had credibility concerns in relation to the first applicant. It was not satisfied that the first applicant had told the complete truth in relation to critical aspects of his claims. The Tribunal explained these concerns at some length in its Decision Record. 5 The Tribunal considered the first applicant's claims regarding his political affiliations in the context of certain country information. The Tribunal found that the first applicant had "very low key political engagement". It was satisfied that he is not a person of interest in Fiji for his political activities in either Fiji or in Australia. The Tribunal asked the first applicant to explain his claims concerning Homelink Security (see [13] of the Decision Record quoted at [2] above) and his fear that he would be tormented by members of Homelink Security, some of whom are ex-military personnel. The Tribunal's Decision Record shows that there was some discussion of this topic. The first applicant informed the Tribunal that he just had a "general" concern, not a concern specifically related to him. The Tribunal was satisfied that the first applicant is not of adverse interest to staff employed by Homelink Security. 6 The Tribunal expressed its conclusions as follows: 46. In summary, given the reasoning outlined, the Tribunal was not satisfied that the applicant faces a real chance of serious harm if he returns to Fiji. Having considered the claims individually and cumulatively, the Tribunal was not satisfied that there is a well-founded fear of the applicant being persecuted for a Convention reason as a result of his claims regarding accessing and disseminating salary information, for being an IT worker or for any political activities in either Fiji or Australia. 47. In terms of Complementary Protection, the Tribunal having separately considered the claims both individually and cumulatively, was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji that there is a real risk the applicant will suffer significant harm due to any of the claims made by the applicant. 48. The Tribunal is satisfied that the above referenced information indicates that in the current political climate, ordinary Fijian citizens are not likely to be targeted by the military unless they are political opponents of the government, are in the media and are critical of the government or are otherwise of a high profile and are seen to be critical of the government. The Tribunal is satisfied that Fijian citizens who are not of any significant profile face no more than a remote chance of being detained and harmed by the military. This assessment applies to the applicant husband and the applicant wife. 49. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

The Federal Circuit Court 7 The primary judge described the applicants' application for judicial review as a statement given in the name of the first applicant which contained assertions of fact and submissions in support of a claim for political asylum in Australia. The primary judge noted that, in the statement, the grounds on which this claim was based travelled beyond the grounds on which the first applicant relied in his application for the protection visa. The primary judge found - and it is not in dispute in the present application - that none of the paragraphs in the statement referred to the Tribunal's decision. 8 The application before the Federal Circuit Court was supported by an affidavit by the first applicant. Once again, the affidavit made a claim for protection; relied on grounds beyond those relied on in the application for a protection visa; and did not address the Tribunal's reasons. Once again, this is not in dispute in the present application. 9 The applicants were not legally represented in the proceeding before the Federal Circuit Court. The matter first came before the Federal Circuit Court on 28 July 2016. On that day, a Registrar made directions for the future conduct of the matter. The Registrar ordered that the matter be set down for a show-cause hearing on 4 August 2017. When, on 4 August 2017, the matter was called on, the first applicant, on his own behalf and on behalf of the second applicant, sought an adjournment. In his reasons in relation to the first judgment, the primary judge described the circumstances attending the application for an adjournment as follows: 2. I pointed out to the applicant that the matter was set down for hearing over a year ago or, at least, the proceeding had been commenced over a year ago, and asked why, during that period, the first applicant was unable to obtain a lawyer. He said it was due to his financial difficulties. He had made no inquiry about securing a lawyer. He was unaware of how much it would cost to obtain a lawyer. I asked him how he thought he might be able to afford a lawyer. He said that he would seek to save the appropriate amount of money. When I asked the first applicant what amount of time he said he required, he said as much time as I was prepared to give him. That answer is unsurprising, given that the applicant does not know how much it would cost him to retain a lawyer and, hence, whether and if so, how long it would take him to be able to raise the money necessary to retain a lawyer. 10 The adjournment was opposed by the Minister. The primary judge was not satisfied that, in the interests of justice, the adjournment should be granted. His Honour expressed his reasons thus: 4. The Court has power to adjourn a hearing. That power is discretionary, but that discretion is exercised, having regard to well-established principles. At the very least, it requires the Court to consider the reasons why it is said the matter needs to be adjourned. Secondly, the Court needs to consider whether, if the adjournment is granted, there would be some utility in the adjournment being granted. Related to that question is the question of prejudice to the parties seeking the adjournment, if the adjournment is not granted. The final matter is what prejudice the party resisting the adjournment is likely to suffer if an adjournment is granted. 5. If I turn to the first factor that I identified, the reason given why the applicant is not in a position to proceed today is the absence of legal representation. However unsatisfactory a position a party may find himself or herself appearing in court without a lawyer may be, the inability of such person to have legal representation does not, by itself, constitute a valid reason for a matter being adjourned. There may well be circumstances where there is a sudden change in legal representation or a matter has been brought on urgently in circumstances where the party has been unable to secure legal representation. That, however, does not apply to the circumstances of this case. The matter was commenced over a year ago and, given what the applicant said about his financial circumstances, the reason he has been unable to obtain legal representation or, at least, a potential reason, has been his inability to afford representation. That does not by itself give rise to a factor in favour of adjourning the matter. More important is whether there would be any utility in granting an adjournment. From what the applicant has said to me, there appears to be no prospect that the first applicant will ever be able to obtain that legal representation, although that proposition can be put less absolutely by saying there does not appear to be any substantial prospects that he could do so. 6. When one then turns to any prejudice the applicant will suffer if an adjournment is not granted, that has been already covered by my finding that the applicant does not have substantial prospects of obtaining legal representation. That is, the first applicant will suffer no prejudice if I do not grant the adjournment because, as I have found, it is unlikely he will obtain any legal representation in the future so that, if the matter is adjourned, the likely situation when the matter resumes will be that the applicant will be here before me again without any legal representation. 7. There is another aspect which deals with prejudice if an adjournment is not granted, and that is whether the applicant's prospects of succeeding on the claim will, in some material way, increase. Whether or not that will occur if an adjournment is granted and if a lawyer is engaged is entirely speculative, and in the circumstances of this case, does not weigh in favour of the granting of an adjournment. 8. I finally turn to prejudice to the Minister. Usually, although not always, the main prejudice that a party faces if an adjournment is granted against that party's opposition is that that party will have incurred costs it otherwise would not have incurred. That prejudice can usually be cured by ordering that the party seeking the adjournment pay the other side's costs thrown away by the adjournment. Given what the first applicant has said to me about his financial circumstances, it would appear that any costs thrown away because of any adjournment I might grant would not be compensated by any order as to costs that I might make against the applicants because the applicants do not appear to have the financial resources to meet an order for costs. 11 The show cause hearing proceeded. Neither the first applicant nor the second applicant (who was invited by the primary judge to make submissions) addressed any matter in support of the application. 12 The primary judge concluded that the grounds stated in the application and in the first applicant's affidavit disclosed no arguable case of jurisdictional error by the Tribunal. The primary judge found that there was nothing in the Tribunal's decision or in the material that was before him that was capable of suggesting that the Tribunal had made any jurisdictional error. For that reason, the primary judge ordered that the application be dismissed.

The present application 13 The present application is made pursuant to r 35.14 of the Federal Court Rules 2011 (Cth) (the rules). The applicants require leave to appeal from both judgments because both judgments are interlocutory in nature. Under r 35.13, an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the relevant order made. Thus, an application for leave to appeal from the first judgment should have been filed by 18 August 2017; an application for leave to appeal from the second judgment should have been filed by 25 August 2017. The applicants filed the present application on 7 September 2017. 14 In an application to extend time in the present context, the Court usually requires an acceptable explanation of the reason for the delay. The Court will also consider any prejudice that might be occasioned to the proposed respondent if time were to be extended. The absence of any prejudice does not mean that an extension of time would be justified. The Court will also consider the underlying merits of the application for leave to appeal. This requires consideration of whether the applicant has shown sufficient doubt as to the correctness of the judgment below such as to warrant its reconsideration by the appeal court, and whether, assuming the judgment below to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were to be refused. 15 The first applicant made an affidavit in support of the present application. He said that, after he received the reasons in respect of the second judgment, he and the second applicant decided to seek leave to appeal. As they did not know "the process and requirements for our case", they asked friends to help them. The first applicant said that this took longer than the 14 days allowed under the rules. No further explanation was provided. 16 The Minister submitted that this evidence does not satisfactorily explain the delay. Nonetheless, the Minister accepted that the delay in seeking leave to appeal from each judgment is relatively short. Further, the Minister did not contend that he would suffer prejudice if an extension of time were to be granted in each case. The Minister submitted, however, that an extension of time and leave to appeal should be refused because the appeal which the applicants seek to bring lacks sufficient prospects of success. 17 The draft notice of appeal contains six proposed grounds of appeal. In written submissions, the applicants stated that they only proposed to advance submissions directed to Grounds 1, 2, 5 and 6. Those grounds are expressed as follows: Ground 1 - failing to consider relevant matters. 1. His Honour failed to consider relevant matters when he affirmed the decision of the 1st Respondent dated 10 May 2016 and refused to allow the appeal by the Appellants Particulars a. His Honour erred in affirming the decision of the 1st Respondent dated 10 May 2016 in refusing to allow the appeal by the Appellants when there appeared to be instances of judicial error of failing to take into account relevant considerations, by the 1st Respondent, specifically its reliance on the Country Report for Fiji and the finding that: b. The situation Fiji had normalised since 2014 elections and there was no ongoing systematic harassment of ordinary Fijian citizens; c. The Appellant was not a person of interest in Fiji for his political activities either in Fiji or in Australia; and d. The Appellant was not under threat of harm by the Fijian military. Ground 2 - failing to apply the correct test regarding suffering serious harm. 2. His Honour failed to failed to apply the correct test regarding suffering serious harm. Particulars His Honour erred in not finding that the Tribunal failed to properly test whether the Applicants would suffer serious harm within the meaning of s 91R(2) the Migration Act 1958; … Ground 5 - unreasonably refusing an adjournment 5. His Honour erred in not allowing an adjournment by the Applicants given that they were self represented and that such adjournment would have allowed the Appellants to seek legal advice and address the deficiencies in their application for judicial review and further when such requested adjournment would not have prejudiced the Respondents but was highly prejudicial to the Appellants. Ground 6 - failing to assist in unrepresented litigant 6. His Honour erred in not rendering reasonable assistance, including the application for an adjournment, to the Appellant who was an unrepresented litigant. 18 The Minister criticised Grounds 1 and 2. 19 As to Ground 1, the Minister submitted that, although it is alleged that the Tribunal failed to have regard to relevant considerations, the draft notice of appeal does not particularise what those considerations are. The Minister submitted that, as currently drafted, Ground 1 appears to be no more than a disagreement with the reliance placed on country information by the Tribunal. As the Minister correctly pointed out, the choice of country information is a matter for the Tribunal. The Minister further submitted that it could not be said that the Tribunal fell into error for not considering information which the applicants themselves had not placed before it. In oral submissions, Mr Chaudhry, who appears for the applicants, accepted this criticism. 20 As to Ground 2, the Minister submitted that no particulars are provided as to how it is said that the Tribunal applied the wrong test with respect to "serious harm". The Minister submitted that, in relation to this ground, the applicants' submissions appeared to do no more than take issue with the Tribunal's reliance on country information and the Tribunal's factual findings based on that information. In oral submissions, Mr Chaudhry also accepted this criticism. 21 Mr Chaudhry said that Grounds 1 and 2 would need to be amended should time be extended and leave to appeal be granted. However, he did not articulate how they would be amended. In their present form, the proposed grounds of appeal fail to identify any jurisdictional error on the part of the Tribunal. 22 As the present application proceeded, the applicants placed greater reliance on Grounds 5 and 6. In relation to those grounds, Mr Chaudhry submitted that the primary judge did not properly exercise his discretion when considering the adjournment application. He argued that the applicants were unrepresented and had little, if any, knowledge of the complex process of migration law or of claims for protection. He argued that it was open to the primary judge to have granted a short adjournment to see whether or not the applicants could secure legal representation. If that had happened, and if legal representation had been obtained, Mr Chaudhry submitted that it was likely that a "more competent" application for judicial review would have been made, in the sense that a competent lawyer would have made the necessary application to the Federal Circuit Court to amend the applicants' pleading and attended to preparing the evidence necessary to support that pleading. 23 The Minister submitted that it was, of course, open to the primary judge to proceed as Mr Chaudhry suggested. But, the Minister said, this is not the correct question. The correct question is whether the applicants can show error in the primary judge's exercise of discretion of the kind identified in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505. The Minister submitted that, in the present case, the applicants had not demonstrated that the primary judge's discretion had miscarried because, for example, his Honour acted upon a wrong principle, was guided by extraneous or irrelevant matters, ignored relevant matters, or made a mistake of fact. Further, the primary judge's discretionary decision was neither unreasonable nor plainly unjust. The Minister submitted that the primary judge considered the factors relevant to whether an adjournment should be granted, including the matters now pointed to by the applicants, and came to the view that there would be no utility in granting an adjournment. The Minister submitted that this view was open to the primary judge, in light of the matters advanced by the first applicant at the time, and that the highest that the applicants can now put the matter is that an alternative course was open to be taken. The Minister submitted that the fact that an alternative course was open to be taken does not demonstrate appealable error. 24 With specific reference to Ground 6, the Minister pointed to the observations made in AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037 at [21] concerning the Court's responsibilities to unrepresented litigants. The Minister submitted that the primary judge discharged his responsibilities conformably with that decision in that: although the adjournment application was not clearly made, his Honour, nonetheless, discerned that such an application had been made and considered it accordingly; and the applicants did not present any evidence in support of the application, but the primary judge asked the first applicant about matters that were relevant to the exercise of his discretion to adjourn the hearing, and considered the responses made. 25 The Minister submitted that, in the circumstances, the primary judge acted appropriately and the applicants were not denied procedural fairness.

Conclusions 26 With respect to the first judgment, I am not satisfied that the correctness of the primary judge's decision to refuse the applicants' application on 4 August 2017 for an adjournment of the show-cause hearing is attended with sufficient doubt such as to warrant that judgment being reconsidered on appeal. The applicants' submissions do not point to appealable error in his Honour's exercise of discretion. The applicants' submissions rise no higher than advocating an alternative course of action which the primary judge might have taken. However, the course taken by his Honour was, at least, equally open, and justified for the reasons his Honour gave. 27 Accordingly, leave to appeal from the first judgment should be refused. For the reasons discussed below, I am not satisfied that, by refusing leave, substantial injustice will be suffered by the applicants, in the circumstances. As leave to appeal will be refused, it is pointless to grant the extension of time that is sought, regardless of whether or not a satisfactory explanation has been given for the delay. 28 With respect to the second judgment, I am not satisfied that the correctness of the primary judge's decision to dismiss the applicants' substantive application for judicial review is attended with sufficient doubt such as to warrant that judgment being reconsidered on appeal. The applicants do not seek to support the basis on which their application for judicial review was brought forward. They point to no error in the primary judgment itself, let alone any error that, properly considered, would be an appealable error. Their proposed grounds of appeal seek to formulate a case for judicial review that was, in fact, never brought. Even then, the pleaded grounds of appeal are admittedly deficient and do not identify jurisdictional error on the part of the Tribunal. The present application is really a plea to let the applicants "have another go" at bringing a proceeding for judicial review, effectively for the first time in this Court. It is not the province or function of this Court, when exercising its appellate jurisdiction, to entertain such a proceeding. 29 For these reasons, the application for leave to appeal from the second judgment wholly lacks merit and must be refused. In the circumstances, I am not satisfied that the applicants will suffer substantial injustice by the refusal of leave. Once again, it would be pointless to grant the extension of time that is sought.

Disposition 30 The application to extend time and to seek leave to appeal will be refused. The applicants are to pay the Minister's costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.