EBQ16 v Minister for Immigration and Border Protection

1. The application be dismissed.
2. The applicant pay the first respondent's cost of the application as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 These reasons concern three applications made by members of a Fijian family for extensions of time to appeal from decisions of the Federal Circuit Court: EBQ16 v Minister for Immigration & Anor [2018] FCCA 981; EBO16 v Minister for Immigration & Anor [2018] FCCA 980; EBR16 v Minister for Immigration & Anor [2018] FCCA 982. 2 Although the applications were lodged separately, the applications were made to the Federal Circuit Court separately, and the Federal Circuit Court delivered separate reasons, the submissions made to this Court for and against an extension of time and the grounds of appeal that would be raised are essentially the same across the three proceedings. Most of the material filed by the applicants is identical across the three proceedings, subject to minor amendments to accommodate the relevant applicants. Accordingly, it is appropriate to deal with the applications together in a single judgment. 3 The Federal Circuit Court decided on 24 July 2018 to dismiss applications made to set aside decisions of the Administrative Appeals Tribunal for jurisdictional error. The Tribunal's decisions, made on 2 December 2016, were to affirm decisions of a delegate of the Minister that protection visa applications made on behalf of each applicant should be rejected. 4 On 6 September 2018 the applicants filed applications for extensions of time to appeal the Federal Circuit Court's decisions including draft notices of appeal, accompanied by affidavits. 5 The grounds of the applications are stated as: 1. The Appellants are facing a tremendous hardship in raising the fees (in the amount of $4675.00) to lodge the application. 2. The Appellants believe that there are an arguable case in favour of the Appellants for the Court to consider hearing the appeal. 6 In SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] the Full Court said: The factors which the Court should take into account in determining whether to grant an extension of time include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent albeit that the mere absence of prejudice is not sufficient: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[25] (Cowdroy J). 7 The respondent said the delay in this case was "not insignificant", but there is no reason to think it would seriously prejudice the respondent. The weightier considerations in this case are the explanation for the delay and the merit of the appeals. 8 The applicants did not provide an acceptable explanation of the delay. The applicants said in affidavits that they later "received information from an unknown third party that such an application could be lodged through fee waiver scheme". How it came to be that the applicants were informed at a later date by an "unknown third party" that they could seek a fee waiver is not explained. Why the applicants did not inform themselves about the fee waiver scheme earlier is not explained. Whilst it may be accepted that none of the applicants are particularly familiar with the Australian judicial system, at least one of the applicants had the capacity to prepare and file the applications and reasonably detailed written submissions in this Court and the Federal Circuit Court. There is also no positive evidence to suggest the applicants were incapable of paying the fees or obtaining a fee waiver due to financial hardship. 9 At the oral hearing of these applications, EBO16 seemed to claim that before she filed the draft notices of appeal (written on the application for an extension of time form) she had already made an application for an extension of time, knew she could obtain a fee waiver, and later came to the Registry with the documents to obtain a fee waiver, but discovered she had only been granted an extension of time to file all "the documents" together at the same time (who granted the claimed extension and what for remains unresolved; it could not be the notices of appeal). I could make little sense of this claim or how it could be reconciled with the applicants' affidavits. But assuming this was an accurate recollection of her understanding of events it does not serve as a satisfactory explanation of why the applicants needed additional time to file what they wanted to file or why the documents needed to be filed together even if this meant delay. 10 Perhaps most importantly, I am not satisfied that the appeals disclose sufficient merit to justify the grant of an extension of time. To the contrary, I am unable to discern any error in the Federal Circuit Court's orders dismissing the applications. 11 There are essentially three proposed grounds of appeal for each of the proceedings expressed in various ways in affidavits and attachments. First, the Tribunal, the Minister and the Federal Circuit Court failed to consider or placed insufficient weight on material provided by the applicants from various associations of which they claimed to be members. Second, in considering whether it was true that the Fijian military arrived at the applicants' house in Fiji and tortured one of the applicants, the Federal Circuit Court wrongly found the evidence of the applicants was inconsistent and documents which recorded information about the claim were given no weight. Importantly, two documents, a letter from the principal of EBQ16's former school and a police report, were found by the Federal Circuit Court to have been sent to the applicants' migration agent but never forwarded to the Tribunal: [2018] FCCA 980 at [52], [2018] FCCA 981 at [43] and [2018] FCCA 982 at [51]. Third, the Federal Circuit Court did not consider the applicants' claims independently but instead tested the claims against country information from the US Department of State, for example. 12 It was not the Federal Court's responsibility to consider the merits and it did not attempt to do so, thus the proposed appeal grounds are misconceived to this extent. Second, insofar as the grounds are about the Tribunal none of them were raised before the Federal Circuit Court and so could not be heard now by this Court on appeal without leave. Despite this, I will deal with the proposed grounds of appeal said to support the grant of the extensions of time. 13 It became apparent during the oral hearing that the most important argument for the applicants was that the two additional documents they sent to the migration agent (as the Federal Circuit Court accepted occurred) were not forwarded to the Tribunal. 14 As the primary judge explained in the decisions below, there was no evidence to suggest that the fact that the migration agent did not forward the two documents to the Tribunal was anything other than a mishap or a result of negligence: see [2018] FCCA 980 at [52]-[56], [2018] FCCA 981 at [43] and [2018] FCCA 982 at [52]-[56]. As such, there is no basis for vitiating the Tribunal's decision. The only basis on which the Tribunal's jurisdiction to decide an application on the basis of the evidence before it (and not before it) would be stultified due to the actions or omissions of a migration agent is conduct amounting to fraud, mere negligence, inadvertence or incompetence being insufficient: see, for example, the summary of the principles in CJR17 v Minister for Immigration and Border Protection [2018] FCA 1627 at [59]. 15 Apart from this argument, the proposed appeal grounds cannot stand in the face of the Tribunal's reasons. The Tribunal, which was the relevant decision making body, was entitled to give the evidence before it any weight it chose, within reason, after assessing the evidence before it. It considered the material and gave such weight to it as it saw fit within the bounds of lawful administrative decision-making. The Tribunal was not required to take the evidence of each applicant at face value, or to cast aside any doubts about their oral evidence if they also submitted documentary evidence which purported to clarify matters. The Tribunal explained why it considered the applicants' evidence was inconsistent and not credible and why their documentary evidence should be given little or no weight. The Tribunal was entitled to prefer official country information, some of which was favourable to the applicants' case. 16 Nor is there any error apparent in the Federal Circuit Court's reasons rejecting the grounds of the application before it. I note that the applicants raised a ground of review in the Federal Circuit Court that the Tribunal used evidence in one proceeding to test or put into context evidence in another proceeding about the same claims. The Tribunal was entitled to do this so the Federal Circuit Court was plainly right to reject this ground. Similarly, the Federal Circuit Court was plainly right to reject a ground of review that the Tribunal did not give satisfactory weight to favourable materials from Amnesty International. 17 For these reasons I am not satisfied that any extensions of time to appeal should be granted. The applications should each be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.