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[2018] FCA 814
Federal Court of Australia
2018-06-01
O'Callaghan J
Original judgment source is linked above.
O'CALLAGHAN J: 1 The applicants seek an extension of time within which to file an appeal from a decision of a judge of the Federal Circuit Court (the primary judge), who upheld a decision of the second respondent (the Tribunal), affirming a decision of the first respondent (the Minister) refusing to grant protection visas to the applicants because they did not meet the criteria of either s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth).
Background 2 The applicants are a husband and wife, and are citizens of Malaysia who arrived in Australia on 8 March 2016. They applied for protection visas on 13 May 2016. 3 The first applicant claimed to fear harm on the basis that he owed debts that he was unable to repay to loan sharks in Malaysia. He claimed that: (1) his business had been struggling so he needed to borrow money, and banks would not lend him the required amounts; (2) he borrowed 50,000 MYR from ten loan sharks, with around half the agreements being oral and half in writing; (3) he defaulted on four of these loans; (4) he feared being threatened or harmed by the loan sharks; (5) he had already been threatened by the loan sharks; (6) the loan sharks had painted his car red; (7) the loan sharks have many connections throughout Malaysia, so he was unable to relocate within Malaysia; and (8) he was so afraid that he fled Malaysia with his wife to come to Australia. The second applicant relied on the claims of the first applicant and had no separate claims, although the second applicant did appear and make some submissions on her own behalf both at the Tribunal and in this court. 4 On 21 September 2016, a delegate of the Minister refused to grant the protection visas. The applicants then applied to the Tribunal seeking review of the decision.
The Tribunal decision 5 In its reasons dated 23 March 2017, the Tribunal said that it was "not satisfied that the applicants entered into loan agreements with illegal money lenders in Malaysia, were threatened by them, and left the country for this reason." In such circumstances, the Tribunal was not satisfied that the applicants had a well-founded fear of persecution. It further found that the applicants did not face a real risk of significant harm if returned to Malaysia for any of the reasons claimed, and that no claim for complementary protection could be made out. 6 The Tribunal based its findings largely on inconsistencies in the applicants' narratives and on the dearth of evidence to support their claims. In particular, the Tribunal found: (1) the applicants provided no documentary evidence to support the claim of loan agreements with loan sharks, even after the Tribunal had given the applicants two weeks to provide it; (2) the applicants were unable to provide sufficient non-written evidence with respect to the loan sharks, including, for example, their names; (3) the applicants did not provide a satisfactory response to Tribunal's stated concern that the applicants chose to buy airfares to come to Australia rather than to repay their debts; (4) even if the applicants were in debt, the Tribunal could see no reason why the applicants could not find a way to repay those debts in Malaysia; (5) generally speaking, the applicants' evidence to the Minister and the Tribunal was inconsistent and "hesitant, vague, brief and undetailed", which tended against a conclusion that the applicants were telling the truth.
The Federal Circuit Court decision 7 The applicants sought judicial review of the Tribunal's decision on eight un-particularised grounds. None of those specific grounds is pursued in these proceedings so it is unnecessary to re-state them. 8 The primary judge considered each ground, found that the applicants had failed to identify any jurisdictional error and dismissed the application.
These proceedings 9 Unless an extension of time is granted, appeals from the Federal Circuit Court must be made within 21 days of the date on which the judgment appealed from is handed down: r 36.03(a) of the Federal Court Rules 2011 (Cth). The applicants in this proceeding filed their appeal six days out of time. 10 The principles applicable in deciding whether to grant such an extension of time were not disputed. Discretion should be exercised by reference to: the length of the delay; the explanation for the delay; whether the respondents are prejudiced by the bringing of the application; and the merits of the proposed appeal: see e.g. Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. 11 While counsel for the Minister appropriately conceded that the length of delay was short, and that the Minister was unlikely to suffer prejudice with the bringing of this prospective appeal, he submitted that the explanation for the delay and the lack of any merit in the proposed appeal both weighed in favour of refusing to grant an extension of time. 12 As to the reasons for the delay, in his affidavit dated 17 December 2017, the first applicant stated that the delay was due to the fact that he had sought the assistance of a friend to prepare his documents. This explanation is vague and does not adequately address the reasons for the delay on the part of the applicants' friend. However, even assuming that this explanation was sufficient, in circumstances where the proposed grounds of appeal are without any merit, it is unnecessary to consider the proffered explanation any further. 13 The applicants' draft notice of appeal, dated 17 December 2017, reads as follows (errors in the original): 1. The Administrative Appeal Tribunal erred in its judgment in consideration od applicant's evidence. [Ground 1] 2. The Administrative Appeal Tribunal denied the applicant procedural fairness by reaching adverse conclusion that the applicant claims were not made out and not enough evidence provided. [Ground 2] 3. The Administrative Appeal Tribunal erred in its judgment that the degree of hardship that may be caused by the cancellation to the applicant and his other family members. The Tribunal has not considered this aspect and made factual and legal error. [Ground 3] 4. The Administrative Appeal Tribunal has not given enough consideration to the provided information and made factual and legal error. [Ground 4] 5. The Administrative Appeal Tribunal erred in its judgment that the applicant does not meet the relevant criteria under Australian Migration Act and Migration Regulation accordingly made legal error. [Ground 5] 6. Federal Circuit Court Hon. Jude has not considered information available and made legal error. [Ground 6] 14 These grounds of appeal are so general that it is, as the Minister submitted, very difficult to identify any possible jurisdictional or appellable errors. In any case, (and putting to one side the fact that many of the grounds relate to the Tribunal's decision and not that of the Federal Circuit Court), each ground is without merit. 15 Grounds 1 and 4 assert that the Tribunal's consideration of the applicants' evidence was erroneous and inadequate. However, it is clear that the Tribunal did thoroughly and appropriately consider the evidence as to the applicants' claims and rejected the truth of much of it. The Tribunal said at [18]-[22]: The first-named applicant in his evidence has made claims but has not specified with any detail particulars, or provided sufficient evidence to establish the claims. If the applicants had entered into loan agreements with illegal money lenders, it would be expected that they could discuss in detail matters such as the sequence of events leading to entering into agreements, interest rates, loan terms, times when they defaulted and other matters. The first-named applicant was unable to recall the names of the companies he entered into agreements with, even though there were ten of these agreements, and he had first come across them by seeing them advertised in banners and flyers. He also could not remember the names of any individuals, stating that they had not used correct names. It would be expected that had he entered into these agreements, and been threatened by loan sharks, that he would have remembered some of the names at least, even if they were not the correct names, and that he would have remembered some of the names on the advertisements. He also found it difficult to remember interest rates, and when he had defaulted. These are the types of matters which it would be reasonable to expect a debtor to remember, particularly if he had been threatened. He also said that the interest rate was ten percent rising to thirty on default, but did not distinguish between the ten different agreements. In general, the evidence was vague and did not contain the kind of detail commensurate with telling the truth. Secondly, as discussed with the applicants at hearing, despite having some time to prepare this matter since the Department decision, no written documents were provided to corroborate the oral evidence. The applicant had confirmed that half of the loan agreements were in writing. The applicant requested two weeks to be able to provide these documents and the Tribunal granted the request. No such documents were provided at the end of the two week period. It would be expected that there would be loan documents evidencing the loan agreements. Thirdly, there was no reasonable explanation provided by the applicants as to why they did not repay the money to their debtors or part of it, rather than pay for airfares, agent fees and other travel costs associated with travelling to Australia. The applicants said that they borrowed money to travel to Australia, but did not use this money to repay their other debts as it was not enough. However they did not provide comments as to why they did not use this money for part repayment. Further, the applicants have indicated that the family business is still operational. Both applicants have significant work experience and family support. Thus if they were in debt, there does not appear to be any reason that they would not be in a position to repay, particularly as the first-applicant confirmed that the loan sharks knew they would repay little by little. Fourthly, there was some inconsistency between the evidence provided to the Department and evidence provided to the Tribunal. In the application to the Department, the first-named applicant stated that his car was painted with a red colour by the loan sharks. However to the Tribunal he confirmed that there was no property damage, only three telephone calls and notes. When put to the first-named applicant, he said that a friend approached an agent to fill in his application, and this part of the application was not true. The fact that untruths were included in the Department application about the interaction with loan sharks does call into question the issue of the veracity of the applicants' claims as a whole. When all these matters are considered cumulatively, the Tribunal is not satisfied that the applicants entered into ten agreements with loan sharks or that they defaulted on payments. The Tribunal is also not satisfied therefore that the applicants were threatened by the loan sharks on three occasions, through notes and telephone calls, that the family was threatened or that loan sharks came to the house to look for the applicants. As the primary judge held at [20], each of those findings was open to the Tribunal for the reasons it gave. 16 Ground 2 alleges that the Tribunal had denied the applicants procedural fairness because it reached adverse conclusions regarding them. This ground is also without merit. There is nothing in the draft notice of appeal or in any other material before this court to suggest that the Tribunal failed to afford the applicants procedural fairness for the purposes of Part 7, Division 4 of the Migration Act 1958 (Cth). As the Minister's counsel submitted, a decision maker cannot be said to deny an applicant procedural fairness merely because it does not accept an applicant's evidence. 17 Ground 3 alleges that the Tribunal erred factually and legally in failing to consider the "degree of hardship that may be caused by the cancellation to the applicant and his other family members." Even if such a claim could be made out, no jurisdictional error is alleged in ground 3. 18 Ground 5 alleges that the Tribunal "erred in its judgment that the applicant does not meet the relevant criteria under Australian Migration Act and Migration Regulation…" This ground is too general to be meaningful. 19 Ground 6 alleges that the primary judge erred by failing to consider information available. This ground also cannot succeed. It is clear from paragraphs [16]-[22] of the reasons of the primary judge that he engaged with each separate ground of review and the information that supported each ground. Further, as the applicants filed no written submissions, filed no amended application and made no oral submissions (despite being invited) before the Federal Circuit Court, it cannot be said that the primary judge did not consider any information raised at the hearing in the Federal Circuit Court. 20 At the hearing of this application, I asked the applicants, through their interpreter, if they wished to say anything in support of the application for an extension of time. The first applicant replied: I would like your Honour to make a decision to allow us for this extension of time. I just want to let you know that we work here, and we also pay our taxes … we are not trouble makers. Although I have no reason to doubt the sincerity of this submission, it is irrelevant to the exercise of the court's discretion whether to grant the extension of time sought. 21 The Minister also submitted that the proposed grounds of appeal seek to raise grounds of appeal not contended for in the Federal Circuit Court and that leave would be required to raise these new grounds in any event. Additionally, save for ground 6, the Minister submitted that the applicants failed to identify any error of the primary judge and was impermissibly asking this court to exercise the trial court's jurisdiction (cf. SZUGL v Minister for Immigration and Border Protection [2015] FCA 868 at [18]). Given that the grounds of appeal lack any merit, it is unnecessary further to consider that issue. 22 The court will therefore order that: (1) The applicants' application for an extension of time dated 18 December 2017 be refused. (2) The applicants pay the first respondent's costs, as agreed or assessed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.
BPB17
Minister for Immigration and Border Protection
(1984) 3 FCR 344