BXD17 v Minister for Immigration and Border Protection

The TRIBUNAL 7 The applicant was invited to attend a hearing before the Tribunal on 12 December 2015 but failed to attend. She emailed the Tribunal on 13 December 2015 stating she was unable to attend the hearing due to illness and requesting that the hearing be rescheduled. 8 The applicant was invited to attend a rescheduled hearing on 4 January 2017. During the hearing, the applicant had complained she was suffering a severe headache. The Tribunal offered to adjourn the hearing and resume on another day but the applicant stated she wished to continue - see: [49] of the Tribunal's reasons. 9 Following the hearing, the Tribunal gave the applicant additional time to provide further materials. The applicant submitted the following documents to the Tribunal in the month following the hearing: (1) a letter from a psychologist dated 11 January 2017 which stated that the applicant suffered from a generalised anxiety disorder with panic attacks, symptoms of depression and post-traumatic stress disorder (psychologist's report); (2) a letter from her lawyer in China regarding the status of the divorce proceedings she had brought against her husband and an undated power of attorney authorising the lawyer to "terminate the spousal relationship"; (3) a notarial certificate and translation from the Chinese Consulate General in Sydney stating that the applicant came to sign the undated power of attorney on 5 August 2016; and (4) a letter and translation dated 2 January 2016 signed by the founder of the Chinese Church of Christ Gospel, Aixin Zhou, stating that the applicant joined the church in April 2014 and had participated in church activities. 10 At [62], the Tribunal stated that it placed little weight on the findings contained in the psychologist's report, given that the psychologist had seen the applicant on only one occasion. The Tribunal also noted at [63] that the applicant was able to give evidence and present arguments throughout the hearing, notwithstanding her claims in relation to her memory loss and brain functioning. 11 Regarding the applicant's claims relating to harm from her husband, the Tribunal accepted that the applicant was seeking a divorce from her husband, and that he was having an extra-marital affair. However, it did not accept the applicant's claims that her husband had abused her, that he had kicked her eldest daughter, that he would kill her if she returned to China and divorced him, or that he had recently sent her threatening messages via the app "WeChat". The Tribunal gave various reasons for these finding at [73] to [75]. 12 The Tribunal considered the applicant's claims relating to her Christianity (at [59] to [71]) and her fear of harm from the CCP and her family on account of her husband's extra-marital affair (at [76] to [79]). These aspects of the Tribunal's decision are significant in the present application. I consider them below. 13 The Tribunal ultimately affirmed the decision of the delegate to refuse the applicant's protection visa application on the basis that there was no real chance the applicant would suffer serious harm on the grounds of religion or on any other ground if she returned to China now or in the reasonably foreseeable future, and that she did not meet the complementary protection criterion: at [77] and [79].

The Federal Circuit Court 14 On 3 May 2017, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision under s 476 of the Migration Act 1958 (Cth) (Act). She was given an opportunity to file an amended application, affidavit evidence and written submissions, though no such documents were filed. 15 On 28 November 2017, the applicant filed an interlocutory application seeking an adjournment of the proceeding, together with an affidavit and a report from a registered psychologist. The basis for the adjournment application was the applicant's claim that she was suffering mental problems and could not attend the hearing. At the hearing on 30 November 2017, the applicant made oral submissions in support of the adjournment application. The Federal Circuit Court refused the adjournment application for reasons set out below. 16 The applicant advanced the following grounds of review in the substantive proceedings before the Federal Circuit Court: There exist jurisdictional errors. 1. The Tribunal does not properly consider information in favour of my claims. The Tribunal does not accept that the applicant would be harmed as a family church member. However, based on country information, members of unregistered protestant church members may experience harassment, raids and destruction of church property, pressure to join or report to the government-sanctioned religious organisations, and occasional violence and criminal sanctions. Thus, the Tribunal considers I was not harm for practising religion without sound grounds. 2. The law is wrongly applied because the Tribunal does not properly consider the harm I will suffer on the grounds of religion or domestic violence. 3. The Delegate and the Tribunal does not accept my claims because they rely on immaterial information and make wrong decision. 17 The Federal Circuit Court considered these grounds of review at [23]-[26] of its reasons for decision. It dismissed the application on the basis that the applicant had failed to make out any jurisdictional error on the part of the Tribunal.

The present application 18 The applicant filed the present application for an extension of time on 28 December 2017 together with an affidavit sworn by her on 22 December 2017 which provided the following explanation for the applicant's failure to file a notice of appeal within the prescribed period: Federal Circuit Court did not send me court decision in time. Without court decision, I could not lodge application to Federal Court. There exists procedural unfairness. 19 The applicant also filed a document titled "Draft Notice of appeal from the Federal Circuit Court of Australia", identifying the proposed grounds of appeal on which she would rely, should an extension be granted. 20 In determining whether to grant an extension of time, the Court has an unfettered discretion which must be exercised judicially. The exercise of the discretion requires the balancing of differing and often conflicting interests in accordance with the particular circumstances of each case. Consideration is often given to the following factors referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 (Hunter Valley): (1) the extent of the delay; (2) the applicant's explanation for the delay; (3) any prejudice the respondent might suffer because of the delay; and (4) the merits of the applicant's proposed appeal. 21 These factors are not exhaustive; they are intended to provide general guidance in the exercise of the relevant discretion: Mentink v Minister for Home Affairs [2013] FCAFC 113 (Mentink) at [36], per Griffiths J (with whom Edmonds J agreed). 22 The assessment of the merit of the proposed appeal arises in the context of an interlocutory application and caution is required in assessing the merits at that interlocutory stage of the proceeding, and in determining what significance or weight to give to the resulting conclusion: Mentink at [37] and [38], per Griffiths J, referring to the decisions of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 and Katzmann J in ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [111]. 23 The merit of the proposed appeal should be considered at a "reasonably impressionistic level" by reference to the grounds of appeal as identified. Mortimer J observed in MZABP v Minister for Immigration and Border Protection and Other (2014) 242 FCR 585 (MZABP) at [62]-[63] in relation to the Federal Circuit Court's discretion to extend time under s 477(2) of the Act: 62. As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it 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) 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. 24 The correctness of this approach was accepted by the Full Court of this Court on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [21]-[23] and [38]. More recently, the Full Court adopted this approach in Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27]. That case concerned an application to the Federal Court under s 477A(2) for an extension of time within which to seek judicial review of a decision of the Tribunal. While the Minister had not taken issue with the applicant's explanation for the delay in bringing the application, he nevertheless opposed the grant of an extension of time on the basis that the application lacked any reasonable prospect of success. On the question of merits, the Full Court observed at [27]: In considering this question, the proposed grounds of judicial review should be considered on their face and examined at a "reasonably impressionistic level"; the Court should not descend into a fuller consideration of the arguments for and against each ground (see by analogy MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (the Court)). 25 The same approach should be taken in the exercise of this Court's discretion to extend time under r 36.05 - see: SZUMJ v Minister for Immigration and Border Protection [2017] FCA 1380 at [13], per Markovich J; Cross v Harbour City Ferries Pty Ltd [2017] FCA 1577 at [23], per Lee J. I have approached the determination of the present application in this way.

Prejudice 26 The Minister concedes there would be no real prejudice to him should an extension of time be granted. The mere absence of prejudice, however, is not enough to justify the grant of an extension of time: Hunter Valley at 349; Mentink at [33(d)].

Extent of the delay 27 By virtue of r 36.03 of the Federal Court Rules 2011 (Cth), the applicant was required to file a notice of appeal on or before 21 December 2017, being 21 days after the Federal Circuit Court made its orders on 30 November 2017. Where a court makes orders and delivers judgment ex tempore, the judgment is pronounced and the orders are made on that date: Dobson v Australia Postal Corp [2013] FCA 320 at [17], per Logan J in the context of r 35.14(3)(b). 28 The applicant requires an extension under r 1.39 of seven days in which to appeal. This is a relatively short delay. The length of the delay does not of itself weigh heavily against the making of an order extending time. Nevertheless, the starting point is that the time to appeal is 21 days and there must be some reason to grant an extension, the applicant having made the application.

Explanation for the delay 29 The applicant was present when the judgment was delivered and orders were made on 30 November 2017. She claimed she was unable to lodge an appeal until she received a copy of the Federal Circuit Court's reasons for decision. However, the application for extension was filed on 28 December 2017 and the written reasons were published on 29 January 2018. In other words, the applicant did in fact file her application without having first received the Federal Circuit Court's reasons. Accordingly, the explanation for the delay is not satisfactory. 30 The extent of the delay and the explanation for that delay are related in that the longer the delay, the more satisfactory the explanation would need to be: Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [14], per Farrell J. I do not regard the applicant's lack of satisfactory explanation as weighing heavily against the making of an order extending time in circumstances where the delay is as short as it is. Nevertheless, I do not regard it as providing a reason to extend time.

Proposed appeal grounds 31 The draft notice of appeal from the Federal Circuit Court contained three grounds of appeal: 1. There exists procedural unfairness. Judge of Federal Circuit Court forced me to attend hearing without considering my mental health condition, although I provided medical certificate, which stated that I was not fit to attend hearing due to mental problem. 2. There exists wrong application of law. The risk that the appellant will be mistreated by Chinese government is not properly considered. 3. Whether the delegate disclosed information in the proper way is not considered.

Ground one 32 Ground one is to the effect that the Federal Circuit Court failed to accord the applicant procedural fairness by requiring her to attend the hearing on 30 November 2017 despite her claim that she was not fit to attend the hearing due to her "mental health condition". This ground relates to the primary judge's consideration of the applicant's request for an adjournment and his decision to proceed with the hearing. 33 As mentioned, the applicant applied to the court on 28 November 2018 to adjourn the hearing on the basis that she was suffering "mental problems". This application was made by way of an "application in a case" under rule 4.08 of the Federal Circuit Court Rules 2001 (Cth). The primary judge dealt with the application in a case at the beginning of the hearing on 30 November 2017. The primary judge refused to grant an adjournment for the following reasons: 15. On 28 November 2017, the applicant filed an interlocutory application in a case seeking an adjournment. The applicant filed in support of that an affidavit in which the applicant claimed that she was suffering mental problems and could not attend the hearing and wanted her case adjourned to another time. The affidavit annexed a report from Mei Tze Ling, a registered psychologist. The psychologist identified having seen the applicant for the first time on 11 January 2017, as a result of a referral from a GP, and that she had presented on six occasions. The psychologist said that the applicant was suffering from generalised anxiety and panic attacks, depression, and post-traumatic stress disorder due to stressors of her religious persecution in China, unresolved issues about domestic violence from her marriage and the uncertainty of whether she could remain in Australia. Nothing in the report of the psychologist identified any basis upon which the applicant was unable to attend a hearing before the Court. No medical evidence was put on in relation to any inability by the applicant to attend Court. 16. At the commencement of the hearing, the Court heard the application for an adjournment and invited the applicant to put submissions as to why the Court should grant an adjournment. The applicant asserted that her brain stops working and that she did not want to be sent back and that she has health issues and really wants to stay in Australia. Nothing said by the applicant identified any utility in granting an adjournment. 17. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice. Having heard the applicant put submissions subsequently, it is apparent that the applicant was able to meaningfully participate in the hearing before this Court. 34 The primary judge considered the applicant's "mental health condition" and the evidence presented in support of the adjournment application. Contrary to the particulars to ground one, the "medical certificate" did not state that the applicant "was not fit to attend hearing due to mental problem". On the basis of the medical evidence provided, the primary judge found the applicant had failed to establish that she was unable to attend the hearing. In other words, the primary judge concluded it was not shown that the diagnoses of generalised anxiety and panic attacks, depression and post-traumatic stress disorder prevented her from attending court. He found there was no other medical evidence which supported an inability to attend court. The primary judge also refused to grant an adjournment on the basis that the applicant was unable meaningfully to participate in the hearing. 35 The critical question is whether the applicant was prevented from attending court or participating effectively in a court hearing. Where an applicant's case is that she is unable to attend or participate meaningfully in a hearing by reason of a medical condition, such an applicant must provide some basis for the court to conclude that the medical condition does indeed prevent her attendance or effective participation. The most obvious way to do so is to furnish medical evidence to the effect that the relevant medical condition exists and has the effect of preventing the attendance or effective participation of the applicant. The weight to be afforded such evidence depends on its particular content. A report which explains why the relevant medical practitioner holds the opinion that the medical condition prevents the applicant attending or participating is likely to be afforded more weight than a report which contains mere ipse dixit. A report which just states a conclusion, if admissible, may be of little or no weight. The report in the present case did not state that the applicant was unable to attend, and nor did it state that she was unable to participate meaningfully at a hearing. It follows that it also did not explain why the applicant would not be able to attend or participate meaningfully. Similar issues were addressed in Kaur v Minister for Immigration and Border Protection [2016] FCA 565 at [12]-[14], per Murphy J. 36 During oral submissions before this Court, the applicant stated that, at the time of the hearing before the Federal Circuit Court on 30 November 2017, she was too depressed to understand what was happening, that she could not think and that her mind went blank. She made a similar submission to the Federal Circuit Court, recorded at [16] of the primary judge's reasons. She stated that she did not remember much of the hearing, although recalls becoming conscious again when sitting outside after the conclusion of the hearing. There was no medical or other evidence before this Court to suggest that the applicant was unable to participate meaningfully on 30 November 2017. The primary judge concluded that "the applicant was able to meaningfully participate in the hearing" before that court. 37 It was open to the primary judge to dismiss the adjournment application at the commencement of the hearing for the reasons given. The primary judge's decision to refuse an adjournment involved an exercise of discretion. A discretionary decision can be shown to be erroneous (and liable to be set aside) in various ways, including that the primary judge failed to take into account a relevant consideration, took into account an irrelevant consideration, asked himself the wrong question or mistook the facts. In House v The King (1936) 55 CLR 499 at 504-5, Dixon, Evatt and McTiernan JJ expressed the principles to be applied in an appeal against the exercise of a discretion as follows: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 38 It has been said that "particular caution" is to be exercised by an appellate court when reviewing a discretionary decision on a matter of practice and procedure: Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177. A refusal to adjourn can also be shown to involve jurisdictional error if the refusal was legally unreasonable: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [31], [85]-[86], [101]-[103]. Further, a refusal of an adjournment application can constitute procedural unfairness: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40], per Gaudron and Gummow JJ. None of these was shown to apply here. No error additional to those just identified was shown to affect the primary judge's exercise of discretion. 39 On the basis of the material before the Court on this application, the ground is not sufficiently arguable to justify extending time to appeal.

Ground two 40 Ground two states: "There exists wrong application of law". The accompanying particular claims: "The risk that the appellant will be mistreated by Chinese government is not properly considered". 41 It is not immediately clear whether the applicant intends by this proposed ground to attack the Tribunal's consideration of her claims relating to her fear of harm from the CCP on account of her Christianity or her fear of harm from the CCP on account of her husband's extra-marital affair or both. Both claims had asserted risk of harm at the hands of the Chinese authorities. 42 Whether the Tribunal gave "proper" consideration to the applicant's claim that she would be mistreated by the Chinese government depends on the quality of the Tribunal's engagement with the claims made. In my view, for the reasons indicated below, the Tribunal did sufficiently engage with the claims made and there is no sufficiently arguable jurisdictional error on the material before me. 43 The applicant claimed to fear harm at the hands of the Chinese government (the CCP) due to her Christianity. Despite finding the applicant's knowledge of Christianity to be "vague", the Tribunal was prepared to give her the benefit of the doubt and accept that the applicant practiced Christianity in China: at [59]. It also accepted that she attended church in Australia: at [66]. The Tribunal noted that the applicant had not applied for protection when she first travelled to Australia for three days in January 2014. It did not accept that she could not lodge a protection visa application at that time because her tour guide had held her passport for the duration of her stay. In part for this reason and in part because of "her lack of clarity and the vagueness in relation to key claims", the Tribunal was not satisfied that the applicant was arrested, detained and harmed in 2013, nor did it accept that she was forced to sign an undertaking in which she promised not to attend a family church, or that she stopped attending the family church as a result of her detention in 2013: at [65]. The Tribunal did not accept that the applicant was abused and considered crazy or that her children were teased at school following her release from detention: at [65] 44 The Tribunal noted that recent country information indicated the risk of harm for Christians "expressing and living their faith in China" was very low. It stated at [68]-[70] (citations omitted): 68. The Department of Foreign Affairs and Trade estimates that 70-100 million believers belong to unregistered Protestant Christian organisations and that the number is rising. A relatively recent Guardian report provides that "China is on course, over the next 15 years, to become the world's most populous Christian nation and "this recent growth … must almost all have happened by conversion". 69. In QH (Christians-risk) China CG [2014] UKUT 00086 (IAC), the Upper Tribunal of the UK's Asylum and Immigration Tribunal found that "in general, the risk of persecution for Christians expressing and living their faith in China is very low, indeed statistically virtually negligible" and that "in general, the evidence is that many millions of Christians worshipping within unregistered churches are able to meet and express their faith as they wish to do." 70. As noted earlier, the Chinese Government allows "friends and family to hold small, informal prayer meetings without official registration". It does not tolerate, however, "activities that are perceived to disrupt public order", such as proselytising in public and distributing unapproved literature. Given that the applicant's previous religious activities consisted of attending small gatherings in private homes, the Tribunal finds that the applicant would not act in a manner which would disrupt public order. It finds that she would not proselytise or distribute unapproved material in public. 45 The Tribunal had regard to the Department of Foreign Affairs and Trade Thematic Report titled "Unregistered religious organisations and other groups in the People's Republic of China" dated 3 March 2015. Based on this country information and other material before it, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution upon her return to China on account of her religion: at [71]. Further, it did not accept that she would be harmed for practicing her religion, nor that she would be unable to attend and hold small church gatherings in her own private home and in the homes of others: at [75]. It did not accept that the applicant would be of adverse interest to the Chinese authorities: at [78]. 46 Having regard to the Tribunal's reasons at [59] to [71], it is clear the Tribunal understood the applicant's claim to fear harm due to her Christianity and engaged in an active intellectual consideration of whether this fear was well-founded. It cannot be said that the Tribunal failed "properly" to consider the risk that the applicant would be mistreated by the CCP due to her Christianity. The applicant did not point to anything which was indicative of jurisdictional error on the part of the Tribunal in its consideration of this claim. 47 As to the fear of harm from the CPP by reason of her husband's affair, the Tribunal noted that the applicant had claimed her husband had an affair and that they had separated and she was seeking a divorce. It accepted these matters. It rejected, on the basis of her contradictory evidence and her failure to mention the claim earlier than she did, that she had been the subject of domestic violence at the hands of her husband. It was not satisfied that the applicant's husband would kill her if she divorced him. It concluded the applicant did not have a well-founded fear of persecution on account of her husband. 48 The Tribunal considered the applicant's claim that she would face harm from the CCP (and her family) on account of her husband's affair: at [72] to [82]. The Tribunal did not accept that her husband's extra-marital affair and her family's opposition to divorce constituted "serious harm" within the meaning of s 91R(1) of the Act (which applied at the relevant time), or "significant harm" as defined by s 36(2A) of the Act, or that the applicant faced a well-founded fear of persecution on account of this claim: at [76], [79]. 49 It cannot be said that the Tribunal failed "properly" to consider the risk that the applicant would be mistreated by the CCP due to her husband's extra-marital affair. The applicant did not point to anything which was indicative of jurisdictional error on the part of the Tribunal in its consideration of this claim. 50 Ground two does not have sufficient merit to warrant granting an extension of time, even taking into account the short delay and explanation provided.

Ground three 51 Ground three states: "Whether the delegate disclosed information in the proper way is not considered". This ground was not particularised in the draft notice of appeal. The applicant did not identify any information which was the subject of the complaint or which was purportedly disclosed contrary to the requirements of the Act. As articulated, this ground does not identify any error on the part of the Federal Circuit Court or jurisdictional error on the part of the Tribunal which could result in an appeal to this Court being allowed.

Conclusion 52 On the material before the Court, the proposed grounds of appeal lack sufficient merit to warrant the grant of an extension. No jurisdictional error is apparent in the reasons or decision of the Tribunal. There is no apparent error in the reasons of the Federal Circuit Court. Given the futility of the proposed appeal, notwithstanding the short delay, I do not regard this as an appropriate case in which to exercise the discretion to extend time under r 1.39 pursuant to the application made under r 36.05. 53 The application for an extension of time is dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.