CEV15 v Minister for Immigration and Border Protection

Federal Court of Australia|2017-08-18|Before: Perry J

The application for an extension of time is dismissed.
The applicant is to pay the costs of the first respondent as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The applicant is a citizen of Bangladesh who arrived in Australia by boat in early 2012. He applied for a protection visa on 21 March 2013 under the Migration Act 1958 (Cth) (the Act). He claimed to fear an honour killing if returned to Bangladesh by reason of an affair he had with a young woman from a wealthy family in Bangladesh and to have been the subject of a number of incidents occasioned by her relatives. 2 The application for a protection visa was refused by a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), on 25 July 2014. The delegate relied upon discrepancies between the applicant's written claims and his Departmental interview to reject his claims, finding that they had been fabricated. The delegate's decision was affirmed by the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) on 23 September 2015, after a hearing at which the applicant appeared on 5 June 2015. 3 The applicant seeks an extension of time to appeal pursuant to rule 36.05 of the Federal Court Rules 2011 (Cth) (FCR) against the decision of the Federal Circuit Court (the Court below) given on 13 October 2015. The Court below dismissed with costs the applicant's application for judicial review of the Tribunal's decision. 4 The Minister opposes the grant of an extension of time on the basis that the applicant has failed to demonstrate that any appeal would have reasonable prospects of success if an extension of time were granted. 5 I note that the applicant was not in immigration detention at the time of the hearing and appeared before me without legal representation assisted by an interpreter.

2.1 The Tribunal's Decision 6 In its reasons for affirming the delegate's decision, the Tribunal found that the applicant's evidence concerning his alleged "love affair" with the young woman, and the harm that this allegedly brought to him and his family from her family, was "vague and largely devoid of circumstantial detail" and that it was unable to give the applicant's claims "any credence" (Tribunal's reasons at [17]). The Tribunal also found significant inconsistencies between the applicant's account in his statutory declaration signed in March 2013 and his oral evidence before the Tribunal on matters which "lie at the heart of his claim to be at risk of serious harm or death" if returned to Bangladesh (Tribunal's reasons at [18]-[19]). These included "such basic points" as: whether he was confronted by the young woman's father on one occasion or two; who confronted him; whether or not he met with the young woman after her marriage or they simply spoke by telephone; and whether his brother was badly beaten and left in a vacant field in front of a teashop, or was merely taken there blindfolded to be questioned and threatened (Tribunal's reasons at [18]). Taking together all of the information provided by the applicant, the Tribunal was not satisfied as to the credibility of the applicant's claim to have had a forbidden love affair with the young woman, or for this reason that he was ever threatened or harmed by members of her family or anyone else in Bangladesh, whether or not connected with the Awami League. The applicant did not claim to fear harm in Bangladesh for any other reason and the Tribunal found that no other reason was apparent on the information before it. For these reasons the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Refugee Convention reason (s 36(2)(a) of the Act); nor that he was at risk of significant harm so as to satisfy the criterion for the grant of a protection visa under the complementary protection provision (s 36(2)(aa)).

2.2 The decision of the Federal Circuit Court 7 The Court below carefully and comprehensively considered each of the grounds raised by the applicant, referring to the relevant principles and relevant judicial decisions, but found that the grounds of the application did not demonstrate any jurisdictional error. In essence, the Court below found that the applicant sought impermissibly to review the merits of his application for a protection visa.

1.1 Reason why an extension of time is required 8 Pursuant to rule 36.03 of the FCR, a notice of appeal must be filed within 21 days after the date on which the judgment was pronounced or the orders made, or on or before a date fixed for that purpose by the court appealed from. The judgment and orders of the Federal Circuit Court were made on 13 February 2017. There having been no order by the Federal Circuit Court to the contrary, the notice of appeal was therefore required to be filed 21 days later on 6 March 2017. As the notice of appeal was not filed until 21 March 2017, an extension of time is therefore required.

1.2 Principles applicable to an extension of time 9 The principles relevant to the exercise of discretion to grant an extension of time within which to appeal are well established (see e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349) and may be summarised as follows: (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. (2) The length of the delay is a relevant factor. (3) The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time. (4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time. (5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account. 10 Further, as I recently stated in Jamal v Secretary, Department of Social Services [2017] FCA 916: 12. As to the last of these matters [being the merits of any substantive appeal], it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant's prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to "assess the merits in a fairly rough and ready way" (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds 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 MZABP (FCA) at [62]).

1.3 Has an adequate explanation being given for the delay? 11 As the respondent accepts, the delay is relatively short and the Minister cannot point to any prejudice. The applicant's explanation for the delay was that he was waiting on the written reasons and orders of the primary judge. While the applicant was present at the hearing on 13 February 2017 and therefore aware that his application was dismissed at that time as the primary judge gave an ex tempore (oral) judgment, I consider that he has given a reasonable explanation for the delay. He appeared at that hearing without legal representation and had to be assisted by an interpreter. Furthermore and importantly, the written reasons were not published until 19 April 2017. In those circumstances the Minister appropriately did not press any objection to the application for an extension of time on the ground that no adequate explanation for the delay had been given. 12 Nonetheless I note that the late publication of the reasons had the consequence that the applicant had no written statement of reasons by which to seek legal advice on whether or not to institute an appeal until well after the expiry of the period within which he had a right to appeal. That is, with respect, an undesirable state of affairs. In circumstances where some time may elapse between the giving of oral reasons and the publication of written reasons, a court of first instance may therefore consider it appropriate to make orders deferring the commencement of the period within which an appeal may be instituted until publication of the written reasons, thereby giving efficacy to the right of the individual litigant to make an informed judgment on whether the reasons for judgment reveal an appellate error, including by seeking legal advice if she or he so wishes: see SZTQM v Minister for Immigration and Border Protection [2015] FCA 952. Alternatively, for example, a Court might defer pursuant to rule 16.2 of the Federal Circuit Court Rules 2001 (Cth) the date on which the final order as to costs is to take effect to the date on which written reasons are published.

1.1 Would an appeal have any reasonable prospects of success? 13 Two grounds of appeal are contained in the draft notice of appeal, namely (with particulars omitted): 1. the Administrative Appeal Tribunal made a jurisdictional error when it failed to use the real test of persecution and harm according to the great Migration Act.. 2. The Tribunal failed to apply the correct test in relation to the complementary Protection provision contained in section 36(2) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow rules of real risk test could persecution and harm. (Errors in the original) 14 As the Minister submits, these grounds are bare assertions which fail to identify any specific error on the part of the Tribunal or the Court below. At their highest, the grounds appear to allege that the Tribunal erred in not accepting the applicant's claims. 15 However, as the primary judge held, the Tribunal comprehensively rejected the appellant's claims to fear harm on cogent grounds, as my earlier summary of its reasons for decision demonstrates: see above at [6]. Essentially, the Tribunal found that his claims lacked detail and that there were significant inconsistencies in his accounts of material aspects of his claims. As the Minister submits and as the Court below found, such findings were open to the Tribunal on the evidence before it. Furthermore, while those findings were made in the context of considering whether the Tribunal was satisfied that the applicant was entitled to protection under s 36(2)(a) of the Act under the Refugee Convention, the applicant relied upon the same factual matters to establish an entitlement to protection under the complementary protection provision in s 36(2)(aa). It follows that, where the Tribunal had already rejected those claims in one context, it was entitled to rely upon the same findings of fact in rejecting the claim to complementary protection, as the Court below found. 16 The applicant's oral submissions confirm that his real ground of complaint is that the Tribunal did not believe his claims to fear harm, and he asked this Court to reconsider his application for a protection visa to remain in Australia. However, as I explained at the hearing and as the Minister submitted, the jurisdiction of the Federal Circuit Court is limited to deciding whether the Tribunal's decision was made lawfully under the Act, that is, whether the Tribunal's decision is invalid by reason of a jurisdictional error. This Court in turn must decide whether the Federal Circuit Court wrongly decided that there was no jurisdictional error. The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the applicant's visa application must be assessed under the Migration Act, or if it failed to hear and determine his application in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court). However, neither this Court nor the Federal Circuit Court has jurisdiction to grant the applicant a visa, to consider whether the applicant satisfies the criteria for the grant of protection visa, or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 240 [65] (Sackville J), 257 [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The question of whether or not this Court or the Court below agrees with the Tribunal's decision is not a basis for overturning that decision, no matter how strongly the applicant may disagree with it and even if another decision-maker might have reached a different view as to his credibility. 17 It follows that neither the grounds pleaded by the applicant nor his oral submissions identify any arguable error of a relevant kind by the primary judge or the Tribunal. It follows in my view, that an appeal would not have any reasonable prospects of succeeding and therefore that it would not be in the interests of justice to grant an extension of time.

CONCLUSION 18 For these reasons, the application for an extension of time within which to appeal must be dismissed. I will hear the parties as to costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

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