BSP17 v Minister for Immigration and Border Protection

The requirement for leave 7 The Federal Circuit Court Judge in the present proceeding dismissed the Originating Application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). That rule confers a discretionary power to dismiss an application if that Court "is not satisfied that the application has raised an arguable case for the relief claimed". 8 The dismissal of an application pursuant to r 44.12(1)(a) is an interlocutory decision: Federal Circuit Court Rules r 44.12(2). Leave to appeal to this Court is thus required: Federal Court of Australia Act 1976 (Cth) s 24(1A). As a general rule, leave to appeal may be granted where: the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered; and substantial injustice would result if leave were refused, supposing the decision to be wrong. See, for example: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 to 399 per Sheppard, Burchett and Heerey JJ; Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139 at [4] to [5], (2010) 81 ATR 36 at 38 per Ryan, Stone and Jagot JJ. But these two considerations do not represent a "hard and fast rule": Tyne v UBS AG [2016] FCA 241 at [33], (2016) 338 ALR 624 at 631 per Edelman J citing Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156 at [29], (2011) 217 FCR 238 at 249 per Dowsett, Foster and Yates JJ. They are thus "not to be applied in a rigid way, having regard to the variety of interlocutory decisions which may be the subject of an appeal": Ferdinands v South Australia [2017] FCA 32 at [13] per White J. 9 The onus of persuading the Court that leave should be granted lies on the party seeking leave: SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [8] per Flick J. 10 On the facts of the present case, that onus has not been discharged.

The grounds relied upon & the refusal of leave 11 In seeking leave to appeal, the Applicants have set forth (without alteration) the Grounds of that Application as follows: 1. Minister should review the application and the evidence given to court when hearing. 2. The MRT/Immigration should trust the application and the affidavit evidence. 3. Minister should review all the circumstances given. 12 The affidavit filed in support of the Application for Leave to Appeal annexed a draft Notice of Appeal to be relied on if leave were to be granted. The draft Notice sets forth the proposed hand written Grounds of Appeal (as best they can be made out and without alteration) as follows: Grounds of appeal 1) Courts will consider our application based on the evidence and document attached. All the evidence are true and we are attached all the details. 2) We lose our house and we still have to pay the sum of money and the amount with interest without any argument and discusion with the Bank. 3) We are bancrupcy now as we get order from Bank and govt. We pay all money to loan sharks and the risk is we have all this trouble end of the time. 4) We apply all the loan to recovery the loan shark but it is still not ending. We scared, harm and dangerous in country. 5) loan sharks activity are pain to us and they are really bad activity. 6) Hope Court will consider our application and we and family already settle down our life here and want a better life. 7) In the same time my husband have a heart attack and already discharge a month ago and my second son [redacted] have a tumor cancer in the stomic. 8) We have a better life in here, my third son is growing up. Please education, and now he is year '12' and age 17. real support from us, school for his better life in Australia. 13 Although the difficulties confronting unrepresented parties may readily be appreciated, the fact remains in the present proceeding that neither the Grounds of the Application for Leave to Appeal nor the proposed Grounds of Appeal: identify any appellable error on the part of the primary Judge, nor any other error which would have any prospect of success; or any factual material which was not considered by the Tribunal. There is thus no reason why leave to appeal should be granted. 14 The purported Grounds of the Application for Leave to Appeal and the proposed Grounds of Appeal, with respect, are no more than pleas for reconsideration of the factual merits of the applications made for Protection visas. A reconsideration of the factual merits of a decision made by the Tribunal is not the statutory task entrusted to the Federal Circuit Court, let alone this Court on appeal. But, as noted by the primary Judge, those factual merits do expose a basis upon which it would seem to be "inhumane to require the applicants to depart Australia until such time as the health condition of the son has resolved": [2018] FCCA 912 at [32]. As also noted by the primary Judge, the opportunity sought by the other son to complete his secondary education in Australia was "something that the Minister could consider if he was so minded": [2018] FCCA 912 at [35]. But both of these concerns are matters for the Minister alone to consider. No matter how earnest may be the plea made by the Applicants to remain in Australia and for reconsideration of their claims, such pleas fall short of establishing either jurisdictional error on the part of the Tribunal or an unstated appellable error on the part of the primary Judge. 15 A reconsideration of the merits of the claims made by the Applicants is not the function of this Court. The forum in which the factual merits of claims are resolved is by the Minister or a delegate of the Minister and then by the Administrative Appeals Tribunal; the function of this Court on appeal is the more confined task of reviewing the decision of the primary Judge with a view to discerning whether that Judge committed appellable error: cf. CFN15 v Minister for Immigration and Border Protection [2018] FCA 169 at [23] per Gilmour J. 16 Notwithstanding the form in which the Grounds of the Application for Leave to Appeal and the proposed Grounds of Appeal have been expressed, the reasons provided by the primary Judge have nevertheless been reviewed with a view to determining whether there emerges some unstated Ground of Appeal or a Ground which could potentially be reformulated that could be seen as having some prospects of success. 17 Before the primary Judge, five Grounds of Review were relied upon. The reasons of the primary Judge for rejecting each of those five Grounds of Review do not expose any self-evident appellable error. The reasons of the primary Judge set forth, with some degree of care, the Tribunal's findings and reasons ([2018] FCCA 912 at paras [8] to [18]) and thereafter progress to resolve each of the Grounds as follows: Ground 1, being an argument that the Tribunal failed to properly consider the applications made. This Ground was rejected upon the basis that it was "no more than an attempt to take issue with the Tribunal's factual findings that the applicants' protection claims were not credible": [2018] FCCA 912 at [26]. Given the earlier exposition of the Tribunal's reasons and findings, there is no self-evident error in the rejection of this first Ground. Ground 2, being an argument that the Tribunal denied the Applicants procedural fairness. This Ground was rejected on the basis that it was a "bland assertion" and because there was an absence of any evidence to support any argument as to a contravention of ss 424A or 425 of the Migration Act 1958 (Cth): [2018] FCCA 912 at [27]. Again, there is no self-evident error in this conclusion of the primary Judge. Ground 3, being an argument that there had been an "[i]njustice" by an immigration officer in giving "in correct information" (sic). As correctly noted by the primary Judge, it is not at all clear what that Ground was directed to and there was a failure to identify the "information" intended to be referred to: [2018] FCCA 912 at [28]. In the absence of any greater elaboration as to the argument sought to be advanced, it was quite properly rejected. Ground 4, which was expressed as a statement that the Applicants were refused Protection visas and that the Applicants were applying to the Tribunal "to get back my visa". As expressed, the primary Judge correctly concluded that the Ground was no more than "a statement of fact about the applicant's migration process and does not give rise to even an arguable case of jurisdictional error": [2018] FCCA 912 at [29]. Ground 5, being an argument which contended that the delegate had (without alteration) "used the word and verball as him torgue and forcing me and my husband and to tell all the story loan shark activity and at the end he not accepted the reason and torgue". That argument was correctly rejected as "nonsensical": [2018] FCCA 912 at [30]. 18 If consideration is given to: the manner in which the Grounds of Review were expressed before the Federal Circuit Court; the affidavit now filed in support of the Application for Leave to Appeal; and the manner in which the Grounds of Appeal are now expressed in the draft Notice of Appeal the conclusion is, with respect, inescapable that the now-Applicants are seeking nothing other than merits review.

CONCLUSIONS 19 The Application for Leave to Appeal should be dismissed. 20 There is no basis upon which leave should be granted. The Applicants seek a review of the facts rather than seeking to identify any legal error. 21 There is no reason why the First and Second Applicants, the husband and wife, should not pay the costs of the First Respondent. 22 It is nevertheless suggested that those advising the Respondent Minister bring to his attention the facts of the present case, in particular those identified by the Federal Circuit Court Judge. It remains a matter for the Minister, however, to determine what future course the present case should take.

THE ORDERS OF THE COURT ARE:

1. The Application for Leave to Appeal is refused.
2. The proceeding is dismissed.
3. The First and Second Applicants are to pay the costs of the First Respondent, either 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 Flick.