BMU16 v Minister for Immigration and Border Protection

APPLICATION FOR AN ADJOURNMENT 4 The application was first listed for hearing at 2.15pm on 22 May 2018. On the applicant's oral application, I granted him an adjournment so that he could seek legal advice. However, I adjourned the matter for two weeks only so as to avoid any substantial delay, given that the matter had been commenced in late 2016. 5 When the hearing resumed on 6 June 2018, the applicant again applied for an adjournment in order to engage a lawyer. That application was also again opposed by the Minister. The applicant relied upon a tax invoice from Fed Migration Services dated 28 May 2018 for taking instructions and giving legal advice which I received in evidence in support of his adjournment application. I accept that the applicant sought legal advice following the hearing and attempted to engage legal representation. However, the applicant explained that he could not afford to engage the lawyer he had consulted to represent him and that, even if the further adjournment were granted, he would be unable to afford legal representation. In those circumstances, there would be no point in allowing the adjournment for the reason sought and the application for a further adjournment was therefore dismissed.

BACKGROUND 6 The applicant is a citizen of Malaysia who arrived in Australia on 18 May 2006 as the holder of a Subclass UD-976 Electronic Travel Authority (visitor visa). He applied for a Protection (Class XA) visa (protection visa) on 16 April 2012. He had previously been granted two student visas, the last of which expired on 7 November 2013. The primary judge summarised his claims as follows: 5. … The applicant claimed to fear harm in Malaysia from his ex-girlfriend's family who have allegedly been constantly harassing and threatening the applicant and his family. The applicant also claims to fear harm from the local Islamic religious enforcers and Muslim thugs. He claimed to fear living in Muslim society and that he was heavily discriminated against due to his Chinese ethnicity. 7 The delegate found that the applicant was not a witness of truth and was not satisfied that he had a real chance of being persecuted for a Refugees Convention reason so as to satisfy the criteria for a protection visa in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act) (FCC reasons at [6]). Nor was the delegate satisfied that there were substantial grounds for believing that he would suffer significant harm if removed to Malaysia so as to engage Australia's complementary protection obligations for the purposes of s 36(2)(aa) of the Act (FCC reasons at [7]). As such, on 26 July 2012 the delegate refused the applicant's application for a protection visa. 8 The primary judge found that: 8. There is evidence before the Court that the delegate's decision was sent by registered post to the applicant's address identified on his application for protection. The tracking number of that registered post was also adduced into evidence. 9 However, it was not until 25 April 2016, almost four years later, that the application for review of the delegate's decision by the Tribunal was lodged. 10 By a decision given on 16 June 2016, the Tribunal found that it lacked jurisdiction to hear and determine the application for review of the delegate's decision for the reasons that: 2. Pursuant to s.412(1)(b) of the Act and r.4.31 of the Migration Regulations 1994, an application for review of [the delegate's] decision had to be made within 28 days after the applicant was taken to be notified of the decision in accordance with the statutory requirements. 3. The material before the Tribunal indicates that the applicant had been notified of the delegate's decision by letter dated 26 July 2012 and was dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. 4. On 29 April 2016, the Tribunal wrote to the applicant, inviting him to comment on [the] [sic] validity of the application for review. The applicant did not respond to the letter. 5. The Tribunal finds that in accordance with s 494C of the Act, the applicant is taken to have been notified of the decision on 6 August 2012. Therefore the prescribed period within which the review application could be made ended on 3 September 2012. As the application for review was not received by the Tribunal until 25 April 2016 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in the matter. 11 The grounds of the application for judicial review in the FCC were as follows: 1. I was misled by the officer during the interview. 2. The Department was giving me incorrect information. 3. The officer said that I would have to pay more than three thousands if I applied for review in the AAT. 4. This is not true, so I wish to have another chance. (errors in original) 12 The primary judge found that no jurisdictional error had been established and dismissed the application for review.

CONSIDERATION 13 The applicant requires leave to appeal to this Court because the decision below was interlocutory in nature: see rule 44.12(2) of the FCC Rules and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act); see also e.g. BSW17 v Minister for Immigration and Border Protection [2018] FCA 141 at [12] (Perry J). 14 A decision on whether to grant leave to appeal is discretionary. Relevant factors include whether in all of the circumstances the decision is attended with sufficient doubt to justify its reconsideration on appeal, and whether substantial injustice would result if leave were refused assuming the decision at first instance to be wrong (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (the Court)). As Mortimer J held by analogy in MZABP v Minister for Immigration and Border Protection, the question of whether an appeal would enjoy sufficient prospects of success to justify the grant of leave is approached at a reasonably impressionistic level: [2015] FCA 1391; (2015) 242 FCR 585 (MZABP (FCA)) at [62]-[63]. The approach of Mortimer J in MZABP (FCA) in this respect was endorsed on appeal in MZABP v Minister for Immigration and Border Protection (No 2) [2016] FCAFC 138 at [38] (the Court)). 15 As the Minister submits, none of the grounds establish sufficient doubt as to the correctness of the FCC decision so as to justify a grant of leave to appeal. 16 First, with respect to ground one of the draft notice of appeal, the primary judge found that there was no evidence before the Court to support the assertions made in the application for judicial review, namely, that the applicant was misled by an immigration officer regarding the sum payable to lodge an application for review by the Tribunal (FCC reasons at [18]-[19]). No evidence has been identified by the applicant as having been overlooked by the primary judge in making that finding. Furthermore, the primary judge found that the letter dated 26 July 2012 from the Department (which was in evidence before his Honour) expressly referred to the applicant's entitlement to apply for review by the Tribunal within the prescribed time frame and stated that: This timeframe commences on the day on which you are taken to have been notified of the decision, and ends at the end of 28 days. 17 As the primary judge held at [21], nothing in that letter suggests that the applicant was required to make a payment in order to pursue an application for review in the Tribunal, let alone a payment in the sum of several thousand dollars. 18 Secondly, ground two of the draft notice of appeal seeks another chance for the applicant's case to be reviewed. However, as the primary judge held, the questions of whether the appellant meets the criteria for the grant of a protection visa under the Act and whether the visa should be granted are matters exclusively for the Minister, and for the Tribunal where it has jurisdiction to review the delegate's decision. They are not questions which the FCC or this Court on an appeal has jurisdiction to consider. The FCC has jurisdiction only to determine whether the Tribunal's decision was made lawfully under the Act, and it is the task of this Court to consider whether the FCC has fallen into error in so deciding. As I explained at the hearing, it was for this reason that I did not allow the applicant to tender character references attesting to his good character, honesty, and hard work on the application for leave to appeal. I also took into account that those references post-dated the Tribunal's decision and that of the FCC, and therefore could not be relied upon to show error in either decision. 19 Thirdly, to the extent to which ground two would seek merits review by the Tribunal, the Tribunal found that it lacked jurisdiction because the applicant had not applied for review of the delegate's decision within 28 days of having been taken to be notified of the decision under the Act: see s 412(1)(b) of the Act and reg 4.31 of the Migration Regulations 1994 (Cth); see also FCC reasons at [12]-[13]. In this regard, the Tribunal had no discretion to extend the time within which the applicant could seek review in the Tribunal: see COD17 v Minister for Immigration and Border Protection [2018] FCA 835 (COD17) at [20] (Perry J); Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 (Calimoso) at [29] (Charlesworth J) by analogy. Save as explained at [22]-[23] of my reasons below, the draft notice of appeal does not seek to challenge these findings. 20 Fourthly, by proposed ground three the applicant alleges that the FCC did not listen to his evidence. The pleaded ground fails to identify what evidence was allegedly not taken into account or listened to. The Minister submitted, however, that on the face of the primary judge's reasons, his Honour considered the applicant's oral submissions which were summarised and dealt with expressly at [17] of his reasons. At [17], the primary judge held that: From the bar table, the applicant maintained that he could not go back to his country and that he would be threatened if he did so. What was said by the applicant from the bar table amounted to an invitation for this Court to engage in an impermissible merits review of the Tribunal's decision. This Court has no power to review the merits of the decision. Nothing said by the applicant from the bar table identified any arguable case of jurisdictional error. 21 However, as I raised with the Minister, there is an error apparent in [17] of the FCC's reasons. As the Tribunal found that it lacked jurisdiction, it did not decide the merits of the applicant's application for review of the delegate's decision. It follows therefore that, contrary to the primary judge's finding at [17], the applicant's submission could not be construed as an invitation for the FCC to engage in impermissible merits review of the Tribunal's decision. That said, however, the primary judge ultimately addressed the correct question, relevantly, whether the application disclosed any arguable case of error by the Tribunal in finding that it lacked jurisdiction. As such, I do not consider that it is arguable that an appeal could succeed on the basis of the error at [17] of the FCC reasons. 22 In the fifth place, the applicant also alleges in proposed ground three that the interpreter did not do "the job". Again no details are given of the basis on which the allegation is made. However, while no evidence was led in support of the allegations, the applicant explained in oral submissions that the applicant submitted before the FCC that he did not receive the letter notifying him of the 28 day period within which to apply for review by the Tribunal but that this statement was not interpreted by the interpreter. The letter referred to by the applicant was not in the materials on the application for leave to appeal, but was presumably the letter dated 26 July 2012 which accompanied the delegate's decision (see [16] above). If the applicant's statement had been made and interpreted, the primary judge would normally have been required to explain to the applicant that, in order to make that submission, he would have to give evidence: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; (2016) 241 FCR 30 at [37]-[42] (the Court). 23 The Minister was content for this application to be decided on the assumption that the applicant would have given evidence in line with his submission that he had not received the letter, if he had been afforded the opportunity before the FCC to do so. However, even making that assumption, the Minister submitted that the evidence could not have led to a different outcome given the findings by the Tribunal and the FCC that the applicant did not apply for review of the delegate's decision within 28 days of being notified of the decision in accordance with the statutory requirements: see above at [19]. That submission must be accepted. Where the document is sent domestically by prepaid post under s 494B(4) of the Act, the person is taken to have received the document seven working days after the date of the document (s 494C(4) of the Act). As a result, the period of 28 days started to run seven working days after the date of the letter even if the letter was never in fact received by the applicant: COD17 at [17]-[20] (Perry J). As such, I do not consider that it is reasonably arguable that any failure by the interpreter to interpret the applicant's submission before the FCC could warrant the grant of relief by this Court on appeal. 24 Finally, the Minister drew the Court's attention to the fact that two non-disclosure certificates had been issued by the Minister pursuant to s 438(1)(a) of the Act dated 26 July 2012 and 3 May 2016. Evidence of those certificates was led, together with the documents in a sealed envelope. The Minister accepted that the certificates were invalid. However, as was recently reiterated by the Full Court in Minister for Immigration and Border Protection v CQZ15, non-disclosure of a s 438 certificate does not always give rise to a denial of procedural fairness: [2017] FCAFC 194 at [68] (Kenny, Tracey and Griffiths JJ). Here, given that the Tribunal had no jurisdiction to review the delegate's decision, no occasion arose for the Tribunal to consider any of the documents subject to the certificate in the exercise of the power under s 438(3) of the Act: CZG17 v Minister for Immigration and Border Protection [2018] FCCA 859 at [59]-[60] (Nicholls J). As such, it is not reasonably arguable that the apparent failure by the Tribunal to disclose the existence of the certificates or the nature of the documents to the applicant could have affected the Tribunal's decision. It follows that there could have been no obligation to disclose the certificates and to afford the applicant the opportunity to make submissions on their validity, proposed use by the Tribunal, or disclosure of the matters or information subject to those certificates under s 438(3)(b): see e.g. ASZ16 v Minister for Immigration and Border Protection [2017] FCCA 1617 at [18]-[20] (Smith J); Minister for Immigration & Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305; and MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 at [50] (Beach J).

CONCLUSION 25 For these reasons, the application for leave to appeal should be refused. As I indicated at the hearing, costs are reserved in order to allow the parties to make submissions on the question of whether the applicant should be ordered to pay all or a reduced percentage of the Minister's legal costs given, in particular, the primary judge's error identified at [21] above. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.