MZADS v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The applicant arrived in Australia on a student visa in July 2009. A second student visa was granted in November 2010. The applicant subsequently applied for a skilled graduate visa, which was refused in December 2012. The Migration Review Tribunal affirmed that decision in June 2013. 2 In July 2013, the applicant lodged an application for a Protection (Class XA) visa. In December 2013, a delegate of the Minister for Immigration and Border Protection refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth). On a review of that decision, the Refugee Review Tribunal (now the Administrative Appeals Tribunal) affirmed the delegate's decision. 3 The Federal Circuit Court of Australia dismissed a judicial review application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), on the basis that that Court was not satisfied that the applicant had raised any arguable case for the relief sought: MZADS v Minister for Immigration [2015] FCCA 1424 at [23]. A dismissal under r 44.12(1)(a) is interlocutory in nature: see Federal Circuit Court Rules, r 44.12(2). Accordingly, the applicant requires leave to appeal, in order to institute an appeal in this Court: see Federal Court of Australia Act 1976 (Cth), ss 24(1)(d) and (1A). 4 The applicant did not, however, file his application for leave to appeal within 14 days after the date that the Federal Circuit Court made the relevant orders, as required by r 35.13 of the Federal Court Rules 2011 (Cth). Accordingly, the applicant must apply under r 35.14, for an extension of time to seek leave to appeal. 5 There is an application for an extension of time before the Court, as well as an application for leave to appeal, if the extension of time application is successful. 6 The applicant did not file any written submissions prior to the hearing today. The applicant sent an email to the Court this morning in which he wrote: Hi Sorry to let u know that I am sick and unable to attend the hearing so I am requesting you to please arrange my hearing on some other day. Please see attached file. thanks A medical certificate accompanied the email. This certificate, bearing yesterday's date, related to yesterday, stating only that the applicant had attended the certifying doctor's surgery and was "unfit for work on 23/11/2015 to 23/11/2015 inclusive". No further information was given. 7 The applicant was informed by email this morning that he was required to attend the hearing this afternoon. This was confirmed with him in a subsequent telephone conversation, also this morning. The applicant did not attend the hearing this afternoon when the matter was called on. An inquiry in and around the court failed to identify the applicant. 8 The first respondent, the Minister, filed written submissions prior to the hearing and appeared at the hearing. The Minister made an application this afternoon under r 35.33(1)(a)(i) of the Federal Court Rules to dismiss the application for an extension of time by reason of the applicant's non-appearance. 9 The applicant is evidently aware of the hearing today. His matter was called on for hearing this afternoon. He was not present, notwithstanding that he had been informed this morning that he was required to attend this afternoon. His application for an adjournment has been refused, there being no sufficient basis for it shown. 10 In the circumstances disclosed, I would dismiss the extension of time application, for non-appearance, under r 35.33(1)(a)(i) of the Federal Court Rules. 11 I am fortified in this decision by the fact that there is no jurisdictional error discernible in the Statement of Decision and Reasons of the Tribunal dated 7 April 2014 and no appellable error apparent in the reasons for judgment of the Federal Circuit Court Judge. As explained hereafter, I would have refused the application for an extension of time on the merits, had it been necessary to do so.

APPLICATION FOR AN EXTENSION OF TIME and LEAVE TO APPEAL 19 The application was accompanied by a short affidavit made by the applicant on 6 July 2015 and a draft notice of appeal. 20 The affidavit stated: I couldn't come on time to lodge the application because I was unaware didn't know that I have to do this within 21 days from my hearing date after I got the letter from Immigration department I came here and knew this, sorry for that and please accept my application thanks so much. (Errors in original.) 21 The applicant's draft notice of appeal from the Federal Circuit Court specifies the following grounds of appeal: (1) Scared from local Mukhiya of my country and unwilling to go back to my country because if I will go will be killed by local Mukhiya as my father works in an NGO, so because of voting the local Mukhiya has threatened my father to vote for him and ask the [leprosy] people to vote for him as my father works for them otherwise will be killed and as I used to help my father back in my country I have been targeted to but the people who interviewed me in MRT and federal circuit court is not making fair with me to grant the visa to live here and save my life and making excuses like date of election or so. (2) I also took a large money from one of the guy in my country when I was coming to Australia for studies and promised him will return back but couldn't do that because of lack of money so I will be killed by him too as he is a criminal and this is his business like giving money to others and take large interest rate. (Errors in original.) 22 The orders sought in the draft notice of appeal are (without alteration): (1) In the federal circuit court on the judgement it was said that my father works in the NGO because they can see my father photos on the NGO site called "Indian Development Foundation" but not believing that my father has been threatened I don't understand why as it has been said that it is not an arguable case so they just told the result but Its not been done fair with me as I couldn't afford my personal lawyer as lack of money. That why I think. (2) Therefore I want the court to go through my RRT and rehear my appeal where they have done wrong so it will should be according to the right decision. 23 As already noted, the applicant was in fact required under the Federal Court Rules to seek leave to appeal within 14 days from the date of the Federal Circuit Court's judgment on 21 May 2015. The applicant filed his application for an extension of time and leave to appeal 32 days after the expiration of that period. 24 The documents filed by the applicant explained his failure to seek leave to appeal within the requisite time on the basis that he did not know about the relevant time limit. Even allowing for the fact that the applicant is self-represented and English is not his first language, this explanation is not compelling. This factor militates against an extension of time, but it is not conclusive of that outcome. The first respondent conceded that prejudice lay "only in the sense of being required to commit resources to dealing with an application to this Court that has no realistic prospects of success". 25 The fact is that both applications for an extension of time and for leave to appeal require some assessment of the proposed grounds of appeal. An extension of time will not be granted where the prospects of success of an application for leave to appeal are so low that the extension of time would be inutile: see, for example, Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20] per Lindgren J and SZUIL v Minister for Immigration and Border Protection [2015] FCA 230 at [22] per Gleeson J. Further, an applicant for leave to appeal against an interlocutory order will ordinarily need to show that: (1) the decision is attended by sufficient doubt to warrant reconsideration, and (2) substantial injustice would result if leave were refused, supposing the decision to be wrong: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. For present purposes, it may be assumed that an unsuccessful applicant for a protection visa will readily satisfy the second element of this test for leave to appeal. Everything therefore turns on the proposed grounds of appeal. 26 The applicant did not, however, identify any arguable jurisdictional error on the part of the Tribunal or error by the Federal Circuit Court in any of the documents that he filed. Further, the reasons for decision of the Tribunal do not in themselves disclose any arguable jurisdictional error. The Tribunal apparently made its factual findings by reference to the material before it and there is nothing that suggests relevant error. 27 The Tribunal rejected the factual basis for the applicant's claims to fear persecution or harm on return to India after finding that the applicant was not a credible witness, in relation to his claims concerning the mukhiyas and the money lender. Ordinarily, a finding about credibility is a matter for the Tribunal, unless there is some aspect of such a finding that is indicative of jurisdictional error. There was nothing indicative of jurisdictional error here; and no basis to attribute error to the judgment of the Federal Circuit Court. 28 There is nothing that indicates that the applicant's leave to appeal application would have any sufficient prospect of success to warrant the grant of an extension of time. Rather, extending time would serve no useful purpose. For the reasons stated, I would refuse the application for an extension of time on the merits, if it was necessary to do so. 29 Since, however, the applicant has failed to appear, in the circumstances disclosed, I would dismiss the extension of time application for non-appearance under r 35.33(1)(a)(i) of the Federal Court Rules. The applicant should pay the first respondent's costs of the proceeding in this Court. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

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