BVS18 v Minister for Home Affairs

1. The application is dismissed.
2. The applicant is to pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BURLEY J: 1 The applicant is a citizen of Malaysia who arrived in Australia in November 2016. He then applied for a protection visa. A delegate of the Minister for Home Affairs refused the application pursuant to s 65 of the Migration Act 1958 (Cth) and the applicant then applied to the Administrative Appeals Tribunal for a review of the decision. On 16 March 2018 the Tribunal affirmed the decision of the delegate. 2 The applicant then applied to the Federal Circuit Court of Australia (FCCA) for judicial review of the decision of the Tribunal. On 9 August 2018, the FCCA dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth); BVS18 v Minister for Home Affairs & Anor [2018] FCCA 2176. The applicant then filed an Application for Extension of Time and Leave to Appeal in this Court on 22 November 2018. Leave to appeal is required, because the decision of the FCCA was interlocutory and an appeal is not available without prior leave; s 24(1A) Federal Court of Australia Act 1976 (Cth) (FCAA). Furthermore, the application for leave to appeal was not filed within 14 days of the FCCA decision as required by r 35.13 of the Federal Court Rules 2011 (Cth) (FCR), but 91 days out of time. Accordingly, the applicant requires an extension of time under FCR 35.14. 3 In his Application, under the heading "Grounds of Application", the applicant sets out an explanation for the late filing. In short, it is that he consulted lawyers but could not afford legal assistance and so filed the application himself. The applicant's affidavit in support of the Application annexes the Orders of the primary judge, the decision of the Tribunal and a draft Notice of Appeal. 4 In his draft Notice of Appeal, the applicant identifies the following grounds upon which he relies: (1) That the decision has a judicial error (which I shall take to refer to jurisdictional error); (2) That the decision was incorrect because the Tribunal used incorrect information in the judgment and was biased against him. 5 The applicant represented himself at the hearing with the assistance of an interpreter and filed no written submissions. In the course of his oral address, the applicant submitted that he relies on the grounds advanced in his previous hearings. Despite this, he said that his case is based only on the claims connected with his relationship with his Christian girlfriend whom he has now married. He referred to a marriage certificate that he could provide to the Court, together with a document indicating that his wife has converted to the Muslim faith. The applicant indicated that he no longer pressed any claim based on his interaction with a loan shark in Malaysia. 6 The Minister was represented by MinterEllison, who filed written submissions in advance of the hearing. 7 In considering the question of whether to grant leave to appeal from an interlocutory decision, the Court must take into account the statements of principle set out in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 104 ALR 621 (Sheppard, Burchett and Heerey JJ). The Court will generally grant leave to appeal where the applicant shows that there is sufficient doubt as to the correctness of the judgment subject to the proposed appeal to warrant review and, further, if that judgment is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is "sufficiently arguable" or has "reasonable prospects of success"; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62] - [63] (Mortimer J). 8 For the reasons set out below, I do not consider that the application has sufficient prospects of success to warrant the grant of leave to appeal. 9 The decision of the Tribunal records the claims advanced by the applicant. It observes that in his protection visa application he claims to have left Malaysia to avoid a money lender to whom he owned money, and that he feared that he would be kidnapped, tortured, physically harassed and even killed if he returned. At the hearing before the Tribunal, the applicant resiled from this story, and contended that the true story was that 4 years ago he had met a Christian girl at work and they decided to start a business together. It was not profitable, and they lost money. They borrowed from their families. They then learned that they could earn money in Australia. The Tribunal understood this to mean that the applicant came to Australia for that reason. The Tribunal then observed that during the course of the hearing a further claim emerged, namely that if the applicant were denied a visa he would no longer be able to be with his girlfriend, because he is a Muslim and she is a Christian. The applicant claimed that he or she would suffer harm if they were required to return to Malaysia. Other details of new claims and inconsistencies are recited in the decision. In general, the Tribunal found the evidence of the applicant to be evasive, vague and rambling, and that the various claims made were inconsistent and unsatisfactory. It found that the applicant's testimony appeared to be exaggerated and to have been invented by the applicant as he went along. 10 Ultimately, the Tribunal found that the applicant lacked credibility in articulating his claims. It did not accept any of the claims made in either his protection visa application or orally at the hearing. It specifically rejected his claims that he faces any harm if he returns to Malaysia whether it was because he borrowed money or because of his relationship with a Christian girlfriend. It found that there is not a real chance that the applicant will face persecution or significant harm if he returns to Malaysia. 11 At the hearing in the FCCA, the applicant did not advance any formal grounds of appeal. The primary judge records at [20] that the grounds as stated in the application were: Myself and my partner faithfully and sincerely believe and uphold that Australian people value the fairness and honesty. We are in relationship from year 2012 until now, and we want to start a new life chapter from the pursuit of happiness. We are seriously believed on the humanitarian grounds and for the sake of justice and fairness, which is totally demonstrated by the Australian government. Humble and deeply requesting Federal Circuit Court of Australia Commonwealth Australia to review and reconsider my case for second time because of our situation, (different religion relationship) which is not accepted in my country. I also have a debt in my country that not allowed me to go back because if I'm back, the Shark Loan will threatened me. We are loving couple who believed in love and mutual respect, also trust is essential and care in establishing our long lasting relationship. I am begging for pardon and deeply seeking apology if my application before is seen inexperienced. We do our best and willing to allocate our time and resources in order to reinstate my case, to AAT. 12 Having regard to these grounds, the primary judge concluded that the application identified no basis upon which it could be concluded that the Tribunal fell into jurisdictional error. He considered that the matters advanced sought no more than an impermissible merits review of the applicant's claim, which was not open to it. 13 In the first draft ground of appeal advanced in the present application, the applicant contends that the decision involves jurisdictional error. Although the ground does not identify which decision-maker said to have fallen into error, it is appropriate to give a self-represented litigant the benefit of the doubt and I shall take it that the allegation is that the Tribunal fell into error, and that the primary judge erred by failing to find that there was such an error. However, in the absence of particulars, the ground as broadly expressed has no content. In my view, and having regard to the decision of the Tribunal, it is not apparent that it fell into jurisdictional error. In particular, I note that the keystone to the Tribunal's rejection of the applicant's claims is that it did not accept them as credible having regard to the evidence before it. It is possible that findings of credit may amount to jurisdictional error; for instance, where they fall within the concept of legal unreasonableness, or amount to a finding without a logical, rational or probative basis, or amount to a failure to give a proper, genuine and realistic consideration to the issues and material before the decision-maker; see BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 161 ALD 441 at [32] - [38] (Perram, Perry and O'Callaghan JJ). However, I do not consider that the decision of the Tribunal reflects any such error. 14 In the second draft ground of appeal, the applicant contends that the decision was incorrect because the Tribunal had regard to incorrect information, and was also biased against him. The first of these contentions is, in reality, no more than a challenge to the merits findings of the Tribunal. It does not form the basis upon which this court may make a finding of jurisdictional error. The second is unsupported by any explanation as to the basis upon which it may be said that bias arose. It is not apparent from the reasoning of the Tribunal. It may be that the applicant contends that because the Tribunal found against the applicant, the findings are inherently biased, although the applicant was unable to develop that point at the hearing. If so, then that does no more than seek impermissible merits review under the guise of an allegation of bias. In any event, the applicant has provided no basis upon which a fair-minded lay person may be caused to think that the Tribunal did not bring a fair and impartial mind to the making of the decision; Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223 at [37] (Rares, Jagot JJ). 15 In his oral submissions the applicant stated that he had now married his girlfriend and that she had converted to the Muslim faith. He asked that the Court grant him his visa so that they could start a new life, and because they will face harm in Malaysia for religious reasons. He abandoned all reliance on his version of events concerning the money lender. 16 The matters raised by the applicant at the hearing do not have a bearing on the correctness or otherwise of the decisions of the Tribunal and the FCCA. They are pleas for the Court to grant the applicant a visa. However, the jurisdiction of this Court does not extend to a merits review of the visa application itself. Those matters must be set to one side. 17 Having regard to each of the proposed grounds of appeal, my evaluation of the prospects of their success, on a reasonably impressionistic level, is that they are very low. In addition, I do not consider that the applicant has adequately explained the reason for filing his application for leave to appeal out of time. Accordingly, although no prejudice flows to the respondent as a result of that delay, and although there may be adverse consequences to the applicant in the event that leave is refused, in my view the weakness of the grounds advanced compels me to the conclusion that it is not in the interests of the administration of justice to grant the leave sought. 18 Accordingly the application must be dismissed. The applicant must pay the first respondent's costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.