CNM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The delegate's decision 5 In his decision, the delegate noted that information obtained from government authorities in the United States indicated that the husband had become a lawful permanent resident in Hawaii in December 1990 and that, at the interview with the delegate on 21 October 2014, he had admitted that he held a permanent resident card that was then currently valid until 24 October 2016. This led the delegate, in part, to assess the husband's claims against the circumstance that he could be returned at that stage to the United States. The delegate also referred to news reports and information obtained from authorities in the United States that indicated that the husband had a criminal history there. These disclosures revealed the substance of the matters disclosed in the s 438 documents. 6 The delegate recorded that the husband claimed, at the interview, that he had an ongoing appeal before the "High Court" in Hawaii in relation to tax evasion convictions recorded in the criminal history and that he was awaiting a hearing date for that matter. 7 The delegate noted that the husband had not claimed, and there was no compelling evidence before the delegate that indicated, that the husband faced a real risk of significant or serious harm in relation to the outstanding criminal matters in the United States.

The Tribunal's decision 8 The husband gave evidence before the Tribunal. It recorded, in its reasons, that the delegate's decision had revealed that the husband had the pending appeal against his tax evasion convictions and continued to be in communication with his American lawyer in that regard. It also recorded that, at the Tribunal hearing, the husband had claimed that he had spent three weeks in immigration detention in the United States, arising out of the tax evasion convictions or difficulties, but that he had also applied to return to that country. 9 The basis of the husband's substantive claim before the Tribunal formed no relevant part of the proceeding before the trial judge or in the present application. It suffices to say that the Tribunal concluded that the husband was not a credible, truthful or reliable witness as to his claims for protection. It found that he had fabricated those claims and concocted evidence to achieve an immigration outcome. Accordingly, it rejected all his claims about why he feared to return to Tonga. The other applicants' claims were simply dependent on the husband's and none of them gave any evidence to the Tribunal. 10 The Tribunal found that, at the time of its decision, the husband still had a lawful right to return to the United States (for a further approximately two months at that stage) but assessed his claims also on the basis that he claimed he could not return to Tonga. It found that there was no basis for granting a protection visa to the husband and, accordingly, affirmed the delegate's decision to refuse those visas for him and his family.

The proceeding before the trial judge 11 The husband raised one written ground of review in the court below. This ground asserted that the Tribunal had erred in its finding that his delay of about eight months in applying for a protection visa after his arrival here, and five months after his subclass 600 visa had expired and he had become an unlawful non-citizen in Australia, told against his credibility. His Honour received evidence from the Minister's solicitors that attached the s 438 documents. 12 His Honour said that the applicants had not taken up the opportunity to address him, or to file submissions after he reserved his decision. He noted that the husband's oral submissions simply expressed his disagreement with the Tribunal's decision. 13 His Honour referred to the Tribunal's rejection of the husband as a witness on whose evidence it could rely and said that he was unable to see any error in the way in which it had approached its task of assessing the evidence. He found that nothing to which the applicants had pointed identified any jurisdictional error that the Tribunal may have made. He found that because the applicants had attached a copy of the delegate's decision to their application to the Tribunal for review, the material in it was available to be used by the Tribunal and that its references to the applicants' United States immigration status and the husband's criminal history set out in its reasons could be sourced wholly to the delegate's summary of those matters in his decision. 14 His Honour noted that the Tribunal's decision was, however, silent as to whether it had taken any of the s 438 documents into account and he considered what, if any, effect the possibility of the Tribunal having done so may have had on the outcome of its decision. He found that there was nothing to indicate that the applicants had suffered any disadvantage by the non-disclosure of the s 438 documents or the certificate in relation to the issues of the husband's nationality, right of residence in the United States or his criminal charges and convictions in that country. That was because he found that those documents, and what they revealed, had no bearing on the Tribunal's decision. He also found that the husband's criminal history in the United States was irrelevant to his claim to fear harm in Tonga or to the assessment of his claim for protection from being returned to that country. Accordingly, his Honour dismissed the application for review.

The applicants' submissions today 15 The three proposed grounds of appeal in substance were that his Honour erred by: failing to consider the relevance of the certificate and the s 438 documents in that the delegate's decision could have been affected by them and the Tribunal's decision may have relied on inconsistencies between the husband's accounts in the interview before the delegate and his evidence to the Tribunal; finding that the s 438 documents had no bearing on the Tribunal's decision when it appeared that it had regard to s 438 documents throughout its decision including in finding that the husband had a right to enter and reside in the United States; and finding that the husband's criminal history contained in the s 438 documents had no bearing on the Tribunal's decision in circumstances where they may have affected its assessment of the husband's credibility. 16 The husband and wife explained to me in their submissions today that they had misunderstood what needed to be done to file an appeal in time. They said that they had been seeking legal assistance in circumstances where they were not easily able to afford this.

Consideration 17 The husband and wife were in a positon like many people who seek protection visas unsuccessfully and then wish to have those outcomes reviewed by another body such as the Tribunal or the Federal Circuit Court. They clearly were not familiar with the Australian legal system and no doubt found it challenging and difficult to both understand and appreciate how they could challenge the Tribunal's decision and find a lawyer who was in a position to assist them with whatever financial resources they could muster for that purpose. Had this been the only issue requiring consideration for the grant of the extension of time, the Minister accepted that he could suffer no prejudice from the granting of the application. 18 However, on 25 May 2019, Mr Kah filed a notice of ceasing to act and the applicants became unrepresented. About a month afterwards, they received a notice of the hearing for today. Each of the husband and wife asked me today for an adjournment so that they could seek to retain another solicitor. They explained again their financial difficulties. One of their daughters is nearing completion of her studies at school in year 11 and another of their children wishes to undertake missionary training in Perth for their church. They said that they had learnt, through the interpreter today, that they may be, or have been, able to apply for legal aid, and they sought a further adjournment so that they could do so. 19 An application for an extension of time in which to file an appeal or leave to appeal challenges a respondent's vested right to retain the benefit of the judgment which the appeal seeks to challenge, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] (and see also at 539-543 [66] per Kirby J). The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F, namely: We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. 20 In MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5]-[6], Mortimer J identified considerations that may bear upon the exercise of the discretion to grant an extension of time. In particular, her Honour noted that the prospects of success of any appeal may be determinative of the manner in which the Court's discretion should be exercised. She said that it was not in the interests of the administration of justice to utilise the resources of the Court and of other parties where there was no realistic prospect an appeal would succeed, if the extension were granted, and to do would also expose an applicant to a further burden of extra costs. 21 Having carefully read the delegate's and the Tribunal's decisions as well as that of the trial judge, I have not been able to detect any arguable basis on which the applicants could establish that the Tribunal made a jurisdictional error or his Honour erred. 22 Following the trial judge's decision, Bell, Gageler and Keane JJ held in Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 at 602 [3] and 611 [44] that an incorrect notification of a certificate under s 438 would result in jurisdictional error by a body in the position of the Tribunal if, and only if, the incorrect notification was material in the sense that it operated to deprive the applicant of the possibility of a successful outcome. Here, there is nothing in the information contained in the s 438 documents that was in any way materially different to the summary of their contents in the delegate's decision or in the summary that the Tribunal gave of them. 23 The husband himself had revealed to the delegate that he had an appeal in relation to his tax evasion convictions that was pending to the extent that any adverse inferences might have been drawn by the Tribunal about the husband's criminal history in the United States. Moreover, he was aware that that information was before the Tribunal, in any event, from the delegate's decision. The Tribunal made no reference, in its statement of reasons given under s 430 of the Act, to that matter forming any part of its reasons. 24 The fact that the certificate wrongly prevented the applicants from knowing about the contents of the s 438 documents could not have made any difference to the outcome of the proceedings before the Tribunal had the applicants known of those documents. That is because there was nothing in their contents adverse, or favourable, to them that had not already been revealed in the delegate's decision.

Conclusion 25 For these reasons, none of the grounds of appeal appear to me to have any prospect of success. Accordingly, the application for an extension of time should be dismissed. The husband should pay the Minister's costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

SCHEDULE OF PARTIES NSD 698 of 2018 Applicants Fourth Applicant: CNX16 Fifth Applicant: CNY16 Sixth Applicant: CNZ16