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[2019] FCA 2067
Federal Court of Australia
2019-12-05
Ms J, Gleeson J
Original judgment source is linked above.
GLEESON J: 1 This is an application for an extension of time and leave to appeal from the decision of a judge of the Federal Circuit Court of Australia (FCCA) in which his Honour dismissed an application to review a decision of the second respondent (Tribunal): CQY18 v Minister for Home Affairs & Anor [2019] FCCA 755. 2 At [28], the FCCA judge recorded that the applicant told his Honour, at a hearing on 26 March 2019, that "there was no mistake in the Tribunal decision and it was the right decision". In that context, it is unsurprising that the FCCA judge found that no arguable case was raised by the applicant and dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCCA Rules). 3 Despite his statement to the FCCA, the applicant now applies to this Court. 4 The ground of the application for leave to appeal is as follows: The court below made a jurisdictional error when it failed to take into account relevant considerations and took into account irrelevant considerations. Particulars: Subparagraph 65 (1) (a) (ii) of the Migration Act 1958 requires the decision maker in respect of the applicant's primary application for a protection visa to make [a] determination as to whether criteria for the grant of the visa prescribed by the Act or the regulations made there under were satisfied. The Tribunal failed to assess the relevant material on logically probative and relevant materials. 5 The proposed ground of appeal set out in the draft notice of appeal replicates the ground set out above. 6 The applicant did not file any written submissions in support of his application. He appeared at the application with the assistance of a Bengali interpreter. 7 The applicant submitted that whatever he has already said or written was the truth, and now he has nothing more to say. After hearing Ms Noakesmith's submissions, the applicant made the following additional observations: "They didn't believe me that at 17 I could do things on behalf of my family. In my country at the age of 17, a boy could do a lot of things." 8 The applicant also noted that "sometimes you get questioned a lot, and in a roundabout way, and you get nervous, and that is why there are sometimes two answers to a question". 9 I am sympathetic to that observation but, of course, it was the role of the Tribunal to assess the applicant's credibility.
Background Facts 10 In the circumstances of this application, it is not necessary to set out the factual background of the applicant in any detail. He is a citizen of Bangladesh, who arrived in Australia as an irregular maritime arrival on 6 May 2013. On 13 August 2013, the applicant applied for a protection visa. The FCCA judge summarised the applicant's claim as follows: 3. On 13 August 2013, the applicant applied for a protection (Class XA) (Subclass 866) visa. He claimed to fear harm from a person called R, an Awami League linked member of a family who lived with the applicant's family in Bangladesh. The applicant claimed that: a) R "fraudulently robbed" the applicant's family of their entitlement to their house, attempted to forcibly evict them in 2004 and forced them to move out in February 2012; b) in 2011 R came to the applicant's house armed with other members of the AL, and the applicant fled. These attacks occurred ten times during 2011, each time R was ready to attack, and the applicant managed to flee; c) he feared serious harm or death from threats and attacks from R and his men; and d) he reported R for illegal money laundering in 2010 for which R was subsequently prosecuted and in January 2013, the applicant was attacked by an AL mob that had been sent to harm him by R.
FCCA Proceeding 11 The applicant sought judicial review of the Tribunal's decision by an application filed on 23 May 2018. The grounds of the application are set out at [25] of the judgment of the FCCA judge. 12 The FCCA judge found no arguable case of jurisdictional error arose from the application filed. His Honour also found that there was no arguable case of error of law or a denial of procedural fairness. His Honour found that the Tribunal's decision turned on comprehensive adverse credibility findings. His Honour concluded that those findings were open to the Tribunal on the material before it, for the reasons given by the Tribunal. Even though the applicant had said that the Tribunal's decision was correct, the FCCA judge separately considered each of the six grounds of review in the applicant's application for review, and the particulars set out in the application.
Application to this Court 13 The applicant requires leave to appeal from the decision of the FCCA because that decision was interlocutory in nature: r 44.12(2) of the FCCA Rules. 14 At the time of his Honour's decision, r 35.13(a) of the Federal Court Rules 2011 (Rules) required that an application for leave to appeal be filed within 14 days after the date on which the judgment was pronounced or the order was made. The judgment and orders of the FCCA judge were made on 26 March 2019. The application to this Court is, therefore, over two-and-a-half months out of time.
Consideration 15 In determining the application for an extension of time, the Court is to have regard to the following factors: (1) Whether the Court is satisfied that it is proper to do so, noting that the prescribed period is not to be ignored. This usually requires an acceptable reason for the delay. (2) Any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension. (3) The merits of the appeal: see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]-[19], relying on Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-349. 16 In determining the application for leave to appeal, the Court needs to consider whether the applicant has shown sufficient doubt as to the correctness of the FCCA judgment to warrant review, and further, that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397. 17 The first respondent points to no prejudice should the extension of time be granted in this case. 18 Therefore the matters to be determined by the Court in considering the present application are the merits of the substantive appeal, whether there is an acceptable explanation for the delay, and whether any substantial injustice would be suffered by the applicant if leave to appeal were refused. 19 I have no doubt that substantial injustice would be suffered by the applicant if leave to appeal were refused, supposing the decision to be wrong, because the applicant is claiming to be entitled to protection by a protection visa. However, I am satisfied that the proposed appeal has no merit. As the Minister submitted, the proposed ground of appeal makes a vague allegation that the FCCA judge erred in failing to take into account relevant considerations, and that it took into account irrelevant considerations. 20 The particulars make a broad assertion that the Tribunal failed to assess the relevant material on logically probative and relevant grounds. I accept that without particularisation, this ground fails to establish any appealable error on the part of the FCCA, or any jurisdictional error on the part of the Tribunal. Further, I accept that there is no apparent error in the finding of the FCCA judge that the Tribunal's credibility findings were open to it.
Conclusion 21 As there is no merit to the appeal, it would be futile to grant an extension of time and leave to appeal. It is unnecessary to consider the explanation for the applicant's delay in filing the application. 22 The application must be dismissed. Costs should follow the event. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.
CQY18
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs