BKE15 v Minister for Immigration and Border Protection

1. The application for an extension of time is dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).
2. The applicant pay the first respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ROBERTSON J: 1 The applicant is a citizen of Nepal who first arrived in Australia on 17 November 2006 on a student visa. On 14 May 2012, the applicant applied for a protection visa. He claimed to fear harm in Nepal because he is homosexual. 2 When this application for an extension of time was called for hearing there was no appearance by or on behalf of the applicant. The matter was called outside the courtroom and a search was also made for the applicant at the Registry on Level 17. The applicant was not found. 3 In those circumstances the legal representative of the Minister applied for an order that the application be dismissed. He tendered correspondence sent to the applicant's email address notifying the applicant, on each of three occasions, of the hearing today. 4 As Perry J said in AZB15 v Minister for Immigration and Border Protection [2018] FCA 1347 at [8], it is clear that the power in s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) applies to an application for an extension of time within which to seek leave to appeal by virtue of ss 25(2) and 25(2A) of that Act. 5 I make the orders sought by the legal representative of the Minister. 6 Although I do not have the benefit of any written or oral submissions by on behalf of the applicant, it may save time and costs later if I indicate my present views on the application for an extension of time. 7 The application is for an extension of time to appeal from the judgment of the Federal Circuit Court of Australia given on 24 July 2018 dismissing, with costs, the application for judicial review of the decision of the Administrative Appeals Tribunal given on 19 June 2015 affirming the decision not to grant the applicant a Protection visa. 8 The application is supported by an affidavit affirmed by the applicant on 16 August 2018 stating that the applicant "failed to lodge a notice of appeal within the deadline because of my financial problems. … I tried to lodge an application for a fee waiver based on my financial hardship but it was refused due to lack of documentation." 9 The Minister accepts that the applicant needs an extension of time of two days. 10 In his written outline of submissions, the Minister submitted that any appeal would have no reasonable prospects of success and as such the Court should refuse to grant an extension of time, notwithstanding the very short delay in commencing the proceeding. 11 The grounds of judicial review before the primary judge were as follows: 1. The Tribunal failed to assess my harm on the basis of my sexual orientation. 2. The Tribunal failed to assess the escalating violence in Nepal against homosexual people. 3. The Tribunal failed to assess my harm from my family especially my brother. 12 The primary judge, at [5]-[8] summarised the Tribunal's findings. The Tribunal found the applicant's evidence to be inconsistent, evasive, vague and implausible. It also found that the applicant had developed his claims over time and failed to make significant claims promptly. The Tribunal found that the applicant had not been a witness of truth and had contrived all of his claims for protection. The Tribunal noted a number of particular matters leading to its conclusions. In finding that the applicant was not homosexual, the Tribunal was not satisfied that the applicant would engage in or promote a gay lifestyle if he returned to Nepal, nor did it accept that he would be perceived to be homosexual in Nepal. The Tribunal did not accept, based on the applicant's personal circumstances, that the applicant would be denied the capacity to earn a living of any kind in Nepal or that he would suffer significant economic hardship which would threaten his capacity to subsist there. 13 Turning to the three grounds of judicial review which were before the Federal Circuit Court, the primary judge said, at [10], that those grounds were based on a false factual premise, namely, that the Tribunal had accepted that the applicant was homosexual. All of the applicant's allegations, the primary judge said, must fail for that overarching reason. 14 The primary judge also said, at [11], that, in reaching that conclusion, it was not apparent that the Tribunal's factual findings concerning the applicant's sexual orientation, or perceptions of it were he to return to Nepal, were affected by jurisdictional error. The Tribunal's relevant conclusions were well open to it on the evidence and were reached by a process of reasoning which could not be said to have been unreasonable or illogical in the relevant legal sense. 15 The primary judge said, at [12], that the Tribunal considered the harm which the applicant claimed to fear were he to return to Nepal, but was unpersuaded by those claims. No jurisdictional error attached to the relevant findings. 16 It was true, the primary judge said at [13], that the Tribunal did not turn its mind to what the applicant alleged was escalating violence in Nepal against homosexual people, but in the circumstances it was not required to do so. 17 As to the third ground of the application, the issue was dealt with sufficiently, the primary judge said at [14], [103], [113] and [114] of the Tribunal's reasons. 18 The primary judge therefore dismissed the application for judicial review. 19 The proposed grounds of appeal to this Court, as contained in a draft notice of appeal accompanying the applicant's affidavit of 16 August 2018, are as follows: 1. The Federal Circuit Court Judge erred by failing to find that the Tribunal Member made a jurisdictional error in concluding that the Tribunal is of the view that I am not a homosexual and my fear of harm on return to Nepal was overlooked or undermined by the Tribunal Member's arbitrary views and that the Tribunal breached the rules of procedural fairness by unreasonably refusing my oral evidence in my claims. The conduct of the Tribunal Member at hearing went well beyond simply putting adverse views to me and my answers were frequently dismissive. The Tribunal deprived me of procedural fairness and natural justice. 2. The Tribunal Member stated that it does not find me to be a credible witness and The Tribunal is of the view that I have fabricated claims to strengthen my protection application. The Tribunal Member based the finding of lack of credibility was based on a clearly erroneous fact. 3. The Tribunal Member made a cursory conclusion in my claims of fear on return to Nepal and it committed a jurisdictional error in failing to address every part of my claims of persecution upon return to Nepal. The Tribunal did not comply with the requirements of s.424A. The Tribunal did not provide its adverse information in writing as required by s.424A (2)(a) and s.441A of the Act. 20 It may be seen, as submitted by the Minister, that the grounds as proposed raise new arguments that were not before the primary judge and the applicant would require leave to raise those arguments for the first time on appeal. 21 The Minister submitted that such leave should be refused, and additionally or alternatively that each ground was without merit. 22 As to proposed ground 1, the Minister submitted it was difficult to understand but appeared to raise a number of contentions. 23 The first contention was that the primary judge erred by finding that the Tribunal did not make a jurisdictional error in concluding that the applicant was not homosexual (and, as such, would not fear harm on that basis). The Minister submitted that the primary judge was correct to find that the Tribunal's conclusion was open to it on the evidence before it and for the reasons that it gave, and that it was not legally unreasonable. The Minister submitted that the applicant had not identified any basis upon which the Tribunal's finding that the applicant was not homosexual was unreasonable, illogical or otherwise affected by jurisdictional error. The Minister submitted that, properly understood, the applicant was merely challenging the merits of the Tribunal's finding, which was impermissible: Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-36 per Brennan J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. 24 The second contention was that the Tribunal breached the rules of procedural fairness by unreasonably refusing the applicant's oral evidence. The Minister observed that the Tribunal's procedural fairness obligations were codified in Part 7, Division 4 of the Migration Act 1958 (Cth). The Minister submitted that the Tribunal complied with those obligations. The Tribunal invited the applicant to a hearing, pursuant to s 425 of the Migration Act, and the applicant attended that hearing. The Tribunal's decision record disclosed that the applicant was able to give evidence, make claims, and respond to issues raised by the Tribunal at that hearing. The Minister therefore submitted that the hearing was a real and meaningful one (cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152. The Minister submitted that before the Federal Circuit Court the applicant did not file or serve - and again before this Court the applicant has not filed or served - any transcript evidence to substantiate any claim that the Tribunal "unreasonably refused" any of his oral evidence, or otherwise acted in a "frequently dismissive" way. The Minister submitted that, in the absence of such evidence, this contention must necessarily fail. 25 As to proposed ground 2, the Minister submitted that the applicant had not said what that "erroneous fact" was or how that error was "clear". The Minister noted that factual findings were a matter for the Tribunal. Unless the applicant could demonstrate that the fact in question was a "jurisdictional fact", or that the Tribunal made a jurisdictional error on recognised grounds in making that factual finding (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [36]-[38] per McKerracher, Griffiths and Rangiah JJ), then this ground did not amount to anything more than an attempt at impermissible merits review. 26 As to proposed ground 3, the Minister submitted that the applicant had not particularised which claims, or integers thereof, the Tribunal failed to consider. The Minister submitted that the Tribunal properly considered all of the necessary integers of the applicant's claims. 27 The third ground also alleged that the Tribunal did not comply with its obligations under s 424A of the Migration Act. The Minister submitted that this contention must fail, because no obligations arose under s 424A(1) of that Act. The applicant had not identified what material before the Tribunal constituted "information" such that its obligation under s 424A(1) was engaged, other than the Tribunal's adverse credibility findings. The Minister submits that the Tribunal's "subjective appraisals, thought processes or determinations", or the deficiencies it identified in an applicant's evidence, did not constitute "information" for the purposes of s 424A: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 436 FCR 549 at [24] per Finn and Stone JJ; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. To the extent that the applicant alleged a breach of s 441A of the Migration Act, that section only dealt with methods by which the Tribunal may give documents to a person (including pursuant to any obligations under s 424A). In the absence of any obligations under s 424A, this contention must fall away. 28 I adopt the approach explained by Perry J in AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037 at [10] that: …it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and the Court, and the impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant's prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to "assess 'the merits' in a fairly rough and ready way": Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]. In other words, the grounds should be considered on their face and examined at a "reasonably impressionistic level"; the Court should not descend into a fuller consideration of the arguments for and against each ground: see MZABP (FCA) at [62]. 29 As to proposed ground 1, which the applicant would require leave to advance in any appeal, there is no arguable basis for the claim that the Tribunal formed arbitrary views or unreasonably rejected the applicant's oral evidence. It is true to say that the Tribunal emphasised inconsistencies in the applicant's oral evidence and invited the applicant to submit documentary evidence, which the Tribunal said he did not do, but that does not establish either legal unreasonableness or procedural unfairness. There was no evidence before the primary judge as to the claimed conduct of the Tribunal. 30 As to proposed ground 2, which again the applicant would require leave to advance in any appeal, there is no arguable basis for the claim that the Tribunal based its finding of lack of credibility on a clearly erroneous fact. The Tribunal made many findings underpinning its conclusion that the applicant was not a reliable or credible witness. No clearly erroneous fact has been suggested by the applicant. 31 As to proposed ground 3, which again would require leave, the proposition that the Tribunal made a cursory conclusion in respect of the applicant's claims of fear on return to Nepal is contradicted by the detailed consideration the Tribunal gave to the claims. The applicant identifies no part of his claims of persecution upon return to Nepal which he says was not addressed by the Tribunal. No arguable basis was put forward to support the ground that the Tribunal failed to comply with the requirements of s 424A of the Migration Act or that the Tribunal did not provide its adverse information in writing, contrary to ss 424A(2)(a) and 441A of that Act. 32 In my present opinion, no arguable error on the part of the primary judge is made out and no arguable jurisdictional error on the part of the Tribunal is made out: I would have refused the application for an extension of time on that basis. 33 As I have indicated, the application for an extension of time is dismissed by reason of the applicant's failure to appear at the hearing of his application. The application is dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson .