BZAGS v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The appellant is to pay the first respondent's costs to be fixed in the sum of $6,439. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 BZAGS has appealed from a decision of the Federal Circuit Court: see BZAGS & Anor v Minister for Immigration & Anor [2016] FCCA 120. 2 The procedural history to this matter is fraught with delay and other difficulties. This stage of the proceeding began in March 2014 when the appellant filed an application seeking judicial review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, made in January 2014. That application was filed outside the time requirements prescribed under s 477(1) of the Migration Act 1958 (Cth) (the Act), so the appellant also brought an application under s 477(2) of the Act seeking an extension of time to file his substantive application. The primary Judge heard both applications together on 4 March 2015. The appellant did not appear at that hearing and, accordingly, the primary Judge dismissed his applications. About 10 months later, on 24 December 2015, the appellant filed an interlocutory application in the Federal Circuit Court seeking a "review [of his] case". The primary Judge treated that application as an application to set aside the orders he made on 4 March 2015 and to reinstate the appellant's substantive application. On 13 January 2016, the primary Judge dismissed that application. Consequently, the appellant's appeal to this Court is an appeal from that interlocutory decision. 3 The primary Judge considered the appellant's application under four headings as follows: (a) whether there was a satisfactory explanation for the appellant's failure to appear at the hearing on 4 March 2015; (b) whether there was a satisfactory explanation for the appellant's long delay in applying to set aside the orders made on 4 March 2015; (c) whether the Minister would suffer any prejudice if the appellant's application to extend his time in which to commence his judicial review application were successful; (d) the merits of the appellant's extension of time application and proposed substantive application. 4 On the first matter, the primary Judge found that, although the appellant filed an affidavit asserting that he did not appear at the hearing on 4 March 2015 due to his mental illness, no evidence was provided regarding the nature or extent of the illness. Accordingly, his Honour concluded that the appellant had not provided a satisfactory explanation for his failure to appear at that hearing. 5 Similarly, on the second matter, the primary Judge found that the appellant had not provided a satisfactory explanation for his considerable delay in bringing his application filed on 24 December 2015. 6 On the third matter, the primary Judge held that the Minister would not suffer any prejudice if the appellant's application to extend time were successful. 7 On the fourth and final matter, the primary Judge turned to consider the merits of the appellant's extension of time application and the merits of the proposed grounds of review in his substantive application. In doing so, his Honour had regard to "whether there is an explanation for the failure to meet the time limit prescribed by the Rules or the Act for the commencement of the review application; whether there is any prejudice to the respondent if the extension of time is allowed and the merit of the underlying application". On the first of these matters, the primary Judge rejected the appellant's explanation that he could not afford legal representation until two weeks prior to lodging that application. His Honour found that the appellant could have filed the application himself, within time, and then engaged lawyers when he had the financial means to do so. His Honour did not therefore consider that the appellant had given a sufficient explanation for the late filing of his substantive application under s 477 of the Act. On the second matter, whether the respondents would suffer any prejudice if an extension of time were granted, the primary Judge noted that there was no suggestion of any such prejudice from the Minister. On the third and last matter, the primary Judge outlined the appellant's proposed grounds of review, as follows: That the Refugee Review Tribunal fell into jurisdictional error in that either and/or alternatively it: (a) did not observe its duty to review the decision before it; (b) displayed actual or ostensible bias in the making of the decision; (c) did not properly consider the documentary evidence submitted by the applicants; and (d) the Tribunal's failure to consider evidence available to it was a failure to give genuine and real consideration to the material before it and a number of other steps taken in its reasoning process amounted to illogicality. (Emphasis omitted) 8 After reviewing the Tribunal's reasons, his Honour found there was no merit in any of these proposed grounds. As to ground (a), his Honour found that it was clear that the Tribunal had discharged its duty to conduct a review of the delegate's decision. He stated: 29. The tribunal's reasons demonstrate that it engaged in the review process itself rather than simply relying upon the decisions that had been made by the delegate in the first instance or, indeed, on the decisions that had been made by the first tribunal. In my view, there is no prospect of the applicant establishing that the tribunal did not observe its duty to review the decision before it. 9 The reference to the first Tribunal above requires some brief explanation. 10 The appellant is a citizen of Nepal, who first arrived in Australia on 1 August 2008 as a spouse on the temporary visa granted to his wife. About two and a half years later, on 23 February 2011, both he (and his wife) lodged an application for a protection visa. The appellant claimed to fear persecution in Nepal by the Maoists because of his and his family's involvement in the Rastriya Prajatantra Party (RPP). 11 After the Minister's delegate refused the appellant's application for a protection visa in August 2011, he applied to the Refugee Review Tribunal for a merits review of that decision. On 23 March 2012, the Tribunal affirmed the delegate's decision (the first Tribunal). The appellant then made an application to the Federal Circuit Court for judicial review of that decision. On 13 June 2013, the Federal Circuit Court judge quashed the first Tribunal's decision and ordered the matter to be remitted to the Tribunal for re-determination according to law. The appellant attended a hearing before a newly constituted Tribunal in September 2013. As has already been mentioned above, the Tribunal delivered its decision to affirm the delegate's decision in January 2014. 12 Returning to the appellant's proposed grounds of review, as to ground (b), the primary Judge found that the appellant had no prospect of establishing bias in the Tribunal, relying, as he was, solely on the Tribunal's reasons for decision. In particular, his Honour stated: 30. To make out an allegation of actual bias is a difficult thing to do. Generally more is needed than what appears from the tribunal's reasons for decision. There generally needs to be some proper evidence of actual bias. There is, in this particular case, no evidence of actual bias. Nor is there, in my view, anything that comes from the tribunal's reason for decision which would indicate any apprehended bias on the part of the tribunal. 31. The tribunal's obligation is to conduct a review. Part of the review process requires an investigation into the claims that are being made. The process is inquisitorial. To the extent that the tribunal engaged in a process of questioning of the applicant and to the extent that the applicant may have found that uncomfortable or disconcerting, the tribunal did not demonstrate apprehended bias. What it demonstrated was an engagement with the task that it had to carry out. In my view, this ground of review has no prospect of success. 13 The primary Judge also held that proposed grounds (c) and (d) had no prospects of success. From an examination of the Tribunal's reasons, his Honour found those reasons to be detailed and to reveal a careful analysis of the evidence advanced by the appellant. He concluded that the appellant's real complaint was that he did not agree with the conclusions the Tribunal had reached. In summing up, his Honour said: 35. As I have already indicated, in my view, the Tribunal has engaged with the task that it had to perform. It has given genuine and real consideration to the evidence and other material before it. In my view, grounds 3 and 4, expressed as paragraphs (1)(c) and (d) in the application filed on 25 March 2014, have no prospects of success. 14 In deciding to dismiss the appellant's application, the primary Judge concluded in the following terms: 36. Having concluded that there is no explanation for the delay in commencing the primary review application and that there is no prospects of success on that application, I conclude that there is no prospect of the application to extend time, filed on 25 March, 2014 being successful; that is to say it has no merit. 37. That finding, coupled with the applicant's failure to explain his non-appearance on 4 March, 2015 and his failure to explain the delay between that date and the commencement of this application, means that the application filed on 24 December 2015, must be dismissed. I order, accordingly. 15 From this troubled procedural history, it can be seen that the present appeal is an appeal against an interlocutory order and moreover one that involves the exercise of a discretion by the primary Judge relating to a matter of practice and procedure. The first difficulty the appellant therefore has is that he is not entitled to appeal as of right as he has purported to do, but instead is required to apply for leave to appeal, which he has not done: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Even if that difficulty were to be overcome, the appellant has failed to engage with the true object of this proceeding, which is to demonstrate some error of principle in the primary Judge's decision and to show that the decision has caused him substantial injustice: see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 and Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138 at [20]. 16 This can be seen from the two grounds of appeal stated in the appellant's notice of appeal as follows: 1. I had a hearing on the federal circuit court on 04/03/02015 which i had missed by mentel sickenss I couldn't attendent due to my mentell issue and which I was going through for long time. I was out of any relative or family support for nealry 7 years. I coudlnt event know that there was my hearling to be held. I had no electronic device to contact anyone or get update about my court matter. I was not allow to work during my bridging visa in Australia. My family they did help me until they had somehting to help. I was homeless and was not a position to go back to mu country due to fear for my life back in my country NEPAL. ON my absence decision was made again me in FFC ON 04/03/2015. I hope your honour will give chace to put my case forward. 2. I am been to detenction center for over 4 month. during that time I had apple for the minister but my apple was not consider. after the minister decision I was told by my case manager in CHRISTMAS ISLAND DETENTION CENTER that I cant apply any further than sign a document and go back to nepal. My whole family was dispalce during civil war and nepal. still my family they are not able to go back to our birth place. If Aautralia force me to go back i will be prosticuted. (Errors in original) 17 The appellant's oral submissions at the hearing of this appeal were to the same effect. He essentially repeated the explanation for his failure to appear before the Federal Circuit Court in March 2015 without demonstrating why the primary Judge committed some error of principle in rejecting that explanation. No doubt that is because there is no error of principle in the primary Judge's decision on that issue (see at [4] above). 18 Moreover, beyond asserting to fear for his life if he were to return to Nepal, there is nothing in the appellant's two grounds of appeal, nor was there anything in his oral submissions at the hearing of this appeal, to demonstrate that he will suffer substantial injustice from the primary Judge's decision to reject his application. That is to say, there is nothing to show that the primary Judge was in error in concluding that none of the appellant's proposed grounds of review of the Tribunal's decision had any merit. Unaided as I am by any useful submissions from the appellant, from my review of those aspects of the primary Judge's decision, I am unable to detect any such error. 19 For completeness on this aspect, it is worth recording that the Tribunal did not accept that the appellant was a credible witness. It found that he gave inconsistent evidence throughout the course of the hearing before it and his evidence evolved and changed over time. It rejected the appellant's claims that either he or any other member of his family was involved with the RPP. It also rejected his claim that the Maoists targeted him because of his involvement with the RPP. It ultimately rejected the appellant's claim that he faced a risk of persecution if he were to return to Nepal and concluded that he did not satisfy any of the refugee criteria in s 36(2)(a) of the Act. Finally, in light of its factual and credibility findings, it also concluded that he did not satisfy any of the complementary protection criteria in s 36(2)(aa) of the Act. 20 For these reasons, this appeal must be dismissed. The appellant will be ordered to pay the first respondent's costs fixed in the sum of $6,439. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.