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[2020] FCA 449
Federal Court of Australia
2020-04-08
Abraham J
Original judgment source is linked above.
The applicant's submission 18 As noted above, the applicant filed an affidavit in support of his application for an extension, which relevantly provided the following basis: The Facts The Appellant is without liberty and was unrepresented at all relevant times. The Appellant is restricted to limited resources. The Appellant is unable to have [indecipherable] Form 67 Form 121 witnessed by JP because they are only available every Tuesday of the week at 3pm. The Appellant apologises to the Honourable Court for any misunderstanding and inconvenience that may impact the proceedings of this matter. 19 On 12 February 2020, the applicant filed a submission which was in the following terms (any errors as they appear in the submission): Grounds of appeal 1) I will like the Honourable Judge to take into consideration the fact that at the time of my assessment i had been wrongfully accused of a crime i did not commit and further more unfairly placed under 501 while the charge against me was still a case on going in court and the disregard for the fact that i have also never been to jail. I was dissappointed in the abuse of power by the VACCU, depressed and confused. The previous judge failed to take into account without empathy the relevant adverse effect and consequence that improper use of authority impacts on individuals. I almost lost my faith and confidence in the administration of justice. After several months i was a bit relieved when the court finally found me innocent and that case got dismissed. 2) As it states in the decision record..."i was confused" .I realise not everything said at the interview appeared on paper and some choice of words used on paper did not accurately convey the exact meanining intended. The audio recording at the interview is a vital source of oral evidence which should have been taking into account at all stages because the written record mainly expressed the aat perception of the interview by including what they want and excluding what they dont want on paper, i even had difficulty remembering my own fathers real name which was not mentioned afterwards. I was totally cofused about various things for various reasons not only the dates i attended school as indicated.I was unprepared and confused recalling details of events from the past that i decided to forget ever happened.I was only trying to tell the whole trith of my story, provide facts and rough estimates of everything i could remember and not remember properly at different times and in different ways without much focus on accuracy because i was not prepared and didnt know it was going to be used against me as incosistencies. The judge failed to recognise and take into account the relevant consideration of the benefit of doubt that i was giving all the actual facts i could remember over a period of 9 and more years whether it was inconsistent or not. It is a breach of ethics, error of law and improper exercise of power in bad faith to accept that i was confused about dates but acknowledge that i was confused through out the whole interview. 3)The previous judge failed in properly analyse the decision made by the aat,which was only based on a bias moral judgement of the decision maker on a few inconsistecies without any reasonable factual evidence to support that decision. The judge also failed to recognise that the presence of evidence for the dates i attended schoool corrected in inconsistencies with the dates but proves that i attented those schools and that in the same manner the presence of proper anlyses,investigation and evidence would have corrected the other incosistencies they relied upon in making a negative decision. 4) In my previous assessment i referred the judge to the choice of words and the harsh change in tone of expression used by the decision maker after the paragragh i indicated that the ongoing charge against me in court was fabricated. The judge failed in understanding the perspective and consider the relevance and sensitivity of the matter as a ground of appeal. Our moral judegment, decisions and reactions flow from our intuitions and emotion. We use reason to explainand justify our intuitive response to moral circumstances. The decision maker intuitively assumed that i did commit the crime and like any other sex offender/criminal will sooner or later be found guilty in reaction to the statement that the case against me was fabricated. Moral Judgement was impaired by the thought of a sex offender hence forth influecing the decision making process. 5) I requested for the interview to be posponed for more than one reason but that request was refused. Referring to one issue with the term especially doesnt mean the rest of the issues dont exist.There was a judicial error in failing to recognise the aspect of pluralism and proceeding with a narrow minded perception. 6) Finally i requested my presence in court on the day of hearing but my request was overlooked and ignored. I was made to to have a video conference with the court, which made the decision making process unclear and seem prearranged to me. Therefore the procedure required by law to be observed in connection with the process of making the decision was not observed. 20 The applicant also filed, by way of fax to registry on 12 February 2020, an additional bundle of material in support of his application. 21 The respondent opposed the receipt of the additional material. 22 There were primarily three bases advanced: the material was not before the Tribunal or the primary judge; when the applicant asked for the adjournment before the Tribunal it was not related to this material but was on the basis of material from the Ghanaian Police Force to confirm the fact that he provided information to them in relation to a particular person; and the documents address credibility concerns after the Tribunal has made its decision, and so are of such low probative value, they did not warrant being admitted into evidence. 23 The additional material is comprised of three documents: an affidavit from the applicant's mother sworn 2 December 2019 including a copy of the applicant's birth certificate; a letter from Legal Counsel for the applicant's family dated 9 December 2019 stating that the police confirmed that the applicant had assisted in 2005 and they were unable to confirm that they are able to provide any special assistance for him if he returns to Ghana; and a letter from the Ghana High Commission dated 23 December 2019 asking the Court to take this material into account on the appeal. 24 The applicant's attempt to rely on this evidence must be considered in the context of the limited role of this, and the Federal Circuit Court. 25 The Federal Circuit Court could only have disturbed the decision of the Tribunal under review if that decision was infected by jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. This Court's appellate function is to ascertain whether there is an error in the decision of the Federal Circuit Court. Neither Court has the jurisdiction to consider the factual merits of the Tribunal's decision. The issue is not whether this Court or the Federal Circuit Court agrees with the decision. Moreover, this Court is not a forum in which a party may simply reargue the case in the hope of convincing a judge to take a different view of the evidence: DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262 at [21] per Derrington J. 26 This Court may, in limited circumstances, receive fresh evidence on appeal from a decision of the Tribunal: s 27 of the Federal Court Act 1976 (Cth) and r 33.29 of the Federal Court Rules 2011 (Cth). However, given the limited nature of the hearing before the Federal Circuit Court, fresh evidence cannot be adduced on review to contradict evidence before the Tribunal; demonstrate an error of fact by the Tribunal; nor invite this Court to make findings of fact, turning the application in this Court to a merits review: Ozberk v Minister for Immigration and Multicultural Affairs [1998] FCA 12; (1998) 79 FCR 249 per Marshall J; AAW16 v Minister for Immigration and Border Protection [2017] FCA 49 at [33] per Bromwich J; CQV16 v Minister for Immigration and Border Protection [2019] FCA 1098 at [46]-[48] per Griffiths J. 27 The additional material does not fit the description of the material that formed the basis on which the applicant applied for an adjournment before the Tribunal. While the documents post-date the Tribunal's decision (the decision having been made on 19 March 2019 and the documents being dated from 2 December 2019 onwards), there has been no explanation as to why this material (or the information contained within) was not, or could not have been obtained earlier. It was not before the delegate, the Tribunal or the primary judge. This is in the context where the deponent of the underlying affidavit is the applicant's mother (the High Commission relying on that document). Even accepting the difficulties faced by an unrepresented applicant, it has not been established that this material could not have been provided to the Tribunal. I note also the basis of the content of the applicant's mother's affidavit is not specified in that affidavit, and given the nature of content, it is to be inferred in those circumstances any information is likely to have come from the applicant. It is brief and its contents, including in relation to any threat, are in very general terms. For example, there is no reference to any threats made or actions taken, where if the deponent had such evidence it would have been expected to have been included. In any event, as the respondent submitted, the documents address credibility concerns held by the Tribunal. Even accepting that, I note that the Tribunal based its decision as to credibility on a number of considerations, including that recited below at [44]-[46]. The material is really a plea to reach a different conclusion than that made by the Tribunal. That said, the fundamental issue for the applicant is that he is asking this Court to admit evidence in an attempt to show an error in the factual findings made by the Tribunal and in doing so, is asking this Court to revisit the findings made by the Tribunal. That would be to convert this into an impermissible merits review. It therefore could not alter the prospects of success on the application for an extension of time. The evidence is not admitted on this application.
Preliminary issues 28 This matter was first listed for hearing on 21 February 2020 at which time the applicant applied for an adjournment. He did so primarily on the basis that legal aid said that they would give him an appointment with a lawyer. As it turns out, the appointment had been made for two days before the hearing but the applicant submitted that he was unaware of that and he had missed his allocated time slot. The respondent opposed the adjournment primarily on the basis that the applicant had had ample time to get a lawyer, and there was no prospect of success with his substantive application. An adjournment was granted for two weeks, it being made clear that the matter would proceed without further delay on the adjourned date. 29 I note that in his written submission, the applicant had stated that "I kindly also want to be present at the court on the day of hearing and not on video conference". While initially listed in the Perth Registry for hearing in person on 21 February 2020, it was explained to the applicant that the effect of the adjournment he was seeking would be that the matter would be heard by video conference as I would be in Sydney at that time, and the applicant confirmed that he did not object to this. During the course of the hearing by video conference on 6 March 2020, the applicant confirmed that he could both see and hear the proceedings, and was given an opportunity to address all of his written grounds orally. As discussed below at [43], there is no basis to suggest that the video link did not provide effective participation in the hearing to the applicant.
Extension of time 30 The power to extend time in which to appeal is unfettered, however, the authorities identify a number of matters bearing upon the exercise of the discretion to extend time. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349, Wilcox J identified a number of factors which are often cited in this regard. The matters to which the Court will usually have regard to, identified in that judgment, are: (1) the length of the extension sought; (2) the explanation for the delay, including consideration of any action taken by the applicant, other than by way of making an application for review; (3) the prejudice to the applicant if the extension of time is refused; (4) any relevant prejudice to a respondent if the extension of time is granted; (5) the conduct of the parties in the litigation; (6) the merits of the substantial application; and (7) the interests of justice more generally: see for example, Parker v The Queen [2002] FCAFC 133 at [6] and [17] - [19] per Spender, O'Loughlin and Dowsett JJ. 31 The practical application of that concept was considered by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 who relevantly observed at [62]-[63]: 62… [I]t will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2). 63. The correct approach may be expressed by the use of language such as whether a ground is "arguable", "reasonably arguable", "sufficiently arguable" or has "reasonable prospects of success" (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision. 32 This approach was endorsed by the Full Court of the Federal Court (Tracey, Perry and Charlesworth JJ): see MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [21]-[23] and [38]. 33 The respondent opposed the extension of time submitting the explanation is unsatisfactory. The respondent accepted that there is no prejudice to him if the Court were to grant an extension of time, beyond the cost of responding to an unmeritorious application and the public interest in the finality of decision making, but pointed out that the mere absence of prejudice is not enough to justify an order to extend time. The respondent submitted that what was critical was that the applicant's purported grounds of appeal do not establish that the decision of the primary judge is attended by sufficient doubt to warrant an extension of time being granted. 34 Although the explanation for the delay in filing the appeal was rather unsatisfactory, I accept that the delay was only short and that the respondent has suffered no prejudice. Attention is then turned to the merits of the appeal grounds. 35 There appear to be 6 grounds of appeal which can be summarised as follows: (1) the applicant was in jail for a crime he was wrongfully accused of, and the consequences of this were not taken into account; (2) the primary judge failed to take into account the fact that he was confused and unprepared for his interview and he should have been given the benefit of the doubt as to any inconsistencies; (3) the primary judge failed to properly analyse the decision of the Tribunal; (4) the primary judge failed to understand the relevance of the tone of the decision-maker when referring to the charge against the applicant with the claim being that the decision-maker's "moral judgement" was impaired by the accusation of sexual assault of a minor; (5) the refusal of the adjournment application before the Tribunal; and (6) the applicant had requested that he appear in the Court below in person but he only appeared by video link and therefore "the procedure required by law to be observed in connection with the process of making the decision was not observed". These description of the grounds are only a summary, I have taken into account the written and oral submissions expanding those propositions. 36 As a general observation, the written submission (and with the material filed) and the oral submissions presented during the hearing of the appeal primarily addressed the merits of the case. They were directed to arguments and factual matters which the applicant submitted the Court below should have accepted. 37 Against that background I turn to the grounds to assess whether they have sufficient merit to warrant an extension of time. 38 In relation to ground 1, the primary judge addressed the applicant's submission which related to the criminal charge and no error has been identified. It is apparent from the reasons of the Tribunal that the reference to the charge was only by way of background. Rather the complaint seems to be that the primary judge did not have empathy with the applicant's position of being falsely accused of an offence and the effect this had on him. In so far as it is being suggested that the fact of the charge had an adverse impact on the applicant such that he was not in a fit state at the time of the Tribunal hearing, there is no evidence of incapacity before the Tribunal, (or the Federal Circuit Court) in support of that, and no evidence that any complaint on that basis was made at the time. The application for an adjournment was not put on that basis. The primary judge had a limited role in considering the appeal before him, and did not err in his consideration of this ground. 39 Ground 2 suffers from the same difficulties as the first ground; it is a merits review. I note this does not appear to have been a ground in the Court below. Nonetheless, the primary judge considered the Tribunal's approach in relation to the inconsistencies, and in doing so recited aspects of the Tribunal's reasoning. As to the issue of school dates which is raised by the applicant, the Tribunal was satisfied that the discrepancy in the dates the applicant claimed to have attended educational institutions did not have a material effect on his claims for protection. That inconsistency was not used against him, as contended by the applicant. There is also no basis to contend, as the applicant did during the hearing, that from that confusion on his part as to dates the Tribunal should have determined he was incapacitated at the hearing. It is plain that the primary judge addressed the issue of inconsistency in detail. 40 In relation to ground 3, with one limited exception, the applicant has not particularised this complaint. In relation to the one exception, which related to school dates referred to in the paragraph above, the Tribunal was satisfied that the discrepancy in the dates the applicant claimed to have attended educational institutions did not have a material effect on his claims for protection. 41 Ground 4 appears to be related to the first ground. There is no basis to suggest that the Tribunal assumed that the applicant was guilty of the offences with which he was charged. Nor, contrary to the applicant's contention, is there any basis to suggest that the Tribunal was biased against the applicant because of the allegation, or that the allegation was used impermissibly by it. The applicant's submission before the primary judge and in this Court places emphasis on the use by the Tribunal of the word "fabricated" when describing the applicant's response to the charges, and that that word was also used by the Tribunal to describe aspects of his evidence. There is no error in the primary judge's conclusion in that regard. Moreover, it is apparent from the reasons of the Tribunal that the reference to the charges was only by way of background. 42 In relation to ground 5, the primary judge summarised the reasoning of the Tribunal in refusing the applicant's adjournment application. The basis of the application to the Tribunal was to enable more evidence to be obtained to support the applicant's claim that he had informed to the police. However, the Tribunal accepted that the applicant provided information to the police as he claimed, and therefore found that there was no need to delay making its decision to await the response from the police. In so far as the applicant relied in the Court below on his mental state in relation to the adjournment, the primary judge set out the matters relating to the adjournment and the relevant portions of the applicant's affidavit. The primary judge considered those circumstances and found the Tribunal's decision not to adjourn was open to it on the material before it. It was not apparent from the applicant's email request for an adjournment that his mental state was in issue and there was no evidence before the Court below in that regard. 43 As to the final ground, there was no procedure that was not followed by the Court below. The applicant was present at the hearing by video, and he had an opportunity to make submissions, which he did. Indeed, he does not complain or suggest that he was unable to present his argument. There is no basis to suggest that the video link did not provide effective participation in the hearing to the applicant: GKQK v Minister for Home Affairs [2019] FCA 1223 at [46] per Thawley J. 44 The primary judge observed that the most telling factor in the Tribunal's conclusion was that in 2014 when the applicant had the services of a migration agent he did not tell him of a fear of returning to Ghana, because if he had, a protection application would have been made then. 45 The Tribunal concluded at [37] and [78]: 37. When asked why he did not go home when his visa was no longer valid, the applicant said he had a bit of fear about doing that. He said he did not want to think about it first and tried to get a bridging visa. He said he was told he could not get it. He confirmed that he saw a migration agent for advice in 2014 but he was not told then that he was at risk of being detained and deported if he stayed in Australia without a visa. He confirmed that he knew he did not have a visa. The Tribunal is of the view that if the applicant had a genuine fear of being harmed should he return home, having sought the advice of a migration agent and discussed other visa options then (see final bullet point of paragraph 16), he would have lodged an application for a protection visa in 2014. … 78. The Tribunal does not accept that there is a real chance the applicant will suffer serious harm if he is returned to Ghana. It does not find aspects of the applicant's evidence to be credible. When his student visa expired in July 2014, he sought the advice of a migration agent. He lodged a further student visa which was invalid. At the delegate's interview he said that considered applying for a partner visa but did not do so as it was too expensive. The Tribunal is strongly of the view that if the applicant feared for his safety, given he discussed visa options with a migration agent, he would have lodged a protection visa at the time. 46 The applicant has not challenged the correctness of the observation, or the Tribunal's factual finding in that regard. Rather, the applicant's submission is that he only went to ask about a student visa and not any other visa. The applicant complained during the appeal about the finding on the basis that it assumed they talked about other options and when they did not. That submission is to be contrasted with the Tribunal's reasons which recite that the applicant had considered another option. In any event, that submission does not detract from the finding, which was open on the material before the Tribunal. 47 There is no reasonable prospect of success in arguing the substantive appeal. 48 In those circumstances there is no utility in granting an extension of time in which to file the appeal.
Conclusion 49 Leave to extend the time in which to appeal is refused, with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.
BRT19
Minister for Home Affairs
ABRAHAM J: 1 On 6 February 2014, the applicant, who is a citizen of Ghana, arrived in Australia on a student visa, which was valid until 6 July 2014. On 4 June 2014, the applicant applied for a further student visa, but his application was found to be invalid. Consequently, he became an unlawful non-citizen on 7 July 2014, and on 7 November 2018, he was detained in immigration detention. On 9 December 2018, he applied for a protection visa, being the visa the subject of these proceedings. On 11 January 2019, a delegate of the Minister refused to grant the applicant the visa, and on 19 March 2019, the Administrative Appeals Tribunal (the Tribunal) affirmed that decision. 2 This is an application for an extension of time to file an appeal challenging the decision of the Federal Circuit Court dismissing the applicant's appeal from the Tribunal's decision: BRT19 v Minister for Home Affairs & Anor [2019] FCCA 2942. 3 The notice of appeal was filed 11 days out of time for the filing of such appeals, hence the need for an extension of time: s 24 of the Federal Court of Australia Act 1976 (Cth); r 36.03 of the Federal Court Rules 2011 (Cth). The applicant is unrepresented in these proceedings, but did file an affidavit in support of his application, and written submissions setting out, amongst other things, what he identifies as the grounds of appeal. Those grounds are different to what appears in the notice of appeal, and I take them as the grounds being pursued. 4 The applicant made oral submissions at the hearing, which I will address in more detail below. 5 For the reasons below the application for an extension of time in which to appeal is refused.
(1990) 170 CLR 1
(1984) 3 FCR 344
(2009) 83 ALJR 1123
(2015) 242 FCR 585
(1998) 79 FCR 249