SZUPV v Minister for Immigration and Border Protection

EX TEMPORE REASONS FOR JUDGMENT 1 This is an application for an extension of time and leave to appeal. No application for leave to appeal from the decision of the Judge of the Federal Circuit Court was filed within 14 days of the Federal Circuit Court interlocutory decision, as required under r 35.13(a) of the Federal Court Rules 2011 (Cth). It was filed just under two months out of time. Judge Emmett of the Federal Circuit Court had dismissed the application pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). 2 It is well-settled that the factors to be taken into account when considering whether an extension of time should be granted include the extent of the delay, the explanation for the delay, any prejudice the respondent might suffer because of the delay and the merits of the proposed appeal (SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [19]). The Minister for Immigration and Border Protection (the Minister) accepts that he would not be prejudiced by the grant of an extension and that there has been an explanation of the delay. However, the Minister submits that the appeal does not have reasonable prospects of success and opposes the extension of time on that basis. 3 The applicant has filed an affidavit annexing a letter received from the Minister's solicitor. The letter enclosed the orders made by Judge Emmett and sought costs in a fixed sum. The applicant notes that it did not include her Honour's reasons and one of the grounds of his application is that: The letter from Sparke Helmore Lawyers did not include Reasons for Judgement. It is not fair for me to prepare my appeal to Federal Court without that document and my procedural right is not fully guaranteed. [Errors in the original.] 4 The applicant also asserts that he did not understand when he attended the hearing in the Federal Circuit Court that his claim was dismissed, that he was not told when he would receive the order of the Judge and that he did not understand English. He does not explain his lack of understanding of the fact of dismissal, bearing in mind that, as her Honour's reasons note, he was assisted by a Mandarin interpreter. 5 However, I accept that the applicant has given a sufficient explanation for his failure to file his application in time. As there is no prejudice to the Minister, I was inclined to grant the extension of time in which to file an application for leave to appeal if I could be satisfied as to the nature of the prospects of success of the appeal itself. 6 The applicant did not file a draft notice of appeal together with his application for an extension of time. It was clear when the matter came on for hearing (on 13 May 2015) that he only sought to address the question of delay and had only prepared himself to do that. Accordingly, I granted an adjournment to 15 May 2015 to enable the applicant to read, with the assistance of someone who spoke English, the Tribunal decision and the reasons of the Federal Circuit Court Judge. 7 On the first occasion that the matter was before me, I asked the applicant whether he was pursuing the same grounds in his appeal as those he pursued in his application before Emmett J and he said that was the case. Upon the further consideration that he was able to give his application, I asked him again today whether he was pursuing the same grounds, and he said that he was. Those grounds are, as set out in the Federal Circuit Court decision (at [8]): (1) The Tribunal considers my case with bias and does not consider my full situation. (2) The Tribunal does not fully consider potential harm I will suffer upon return of China. [Errors in the original.] 8 Judge Emmett noted that the applicant made no suggestions in relation to ground 2 and, in relation to ground 1, that his complaint was to the effect that the Tribunal did not accept that what he told it was truthful (at [11]). 9 When I pressed the applicant to give details of his grounds for leave to appeal if the extension of time were granted and he had the opportunity to present his case on an application for leave to appeal. He said, as to the alleged ground of bias, that he did not receive correspondence from the opposite lawyer. Upon further explanation, this referred again to the lack of delivery of Emmett J's reasons. The applicant then said that he had applied for refugee status and 'my story is truthful'. 10 As Emmett J noted (at [19]), a claim of bias is serious and requires evidence such as the transcript of the Tribunal hearing. Further, as her Honour said: 'it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. The mere fact that the Tribunal made adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion' (at [19]). Judge Emmett concluded (at [20]) that there was nothing on the face of the Tribunal's decision record to suggest that it approached its decision-making other than with a mind open to persuasion, nor was there anything to suggest that the Tribunal did not consider the applicant's situation. 11 I agree with Emmett J's conclusion. There is nothing on the face of the Tribunal's reasons that indicate the absence of an open mind or any suggestion of bias. 12 The grounds as presented by the applicant also suggest that the Tribunal did not fully consider his claims. He was unable to identify a claim made to the Tribunal that was not the subject of the Tribunal's consideration. He confirmed that the claim that he did make related to a property dispute that he said he had with his neighbour in China. The Tribunal set out the applicant's evidence in some detail, the first point being (at [12]): He left China because he feared harm from his neighbour, who considered that his house had been built too high. His neighbour had employed someone to beat him and he had feared further severe harm as they were chasing him with a knife. 13 The remaining evidence noted in the Tribunal's reasons concerned other actions in relation to that claimed fear of harm. 14 The applicant said to the Tribunal that he did not fear harm in China for any other reason and he has not advanced any other reason before me. The Tribunal concluded that it was not satisfied that the applicant had provided a credible account of his circumstances in China and said, further (at [17]): In particular, on the information before the Tribunal, I'm unable to be satisfied that he did in fact have a dispute with a neighbour over the height of his house or that he was ever threatened or harmed by this neighbour. I am not satisfied that he left China and came to Australia for such a reason. Nor am I satisfied there is a real chance that he would suffer serious harm for such a reason if he were to return. He does not claim to fear harm in China for any other reason and no other reason is apparent on the face of the information before the Tribunal. 15 The Tribunal gave reasons for coming to that conclusion. 16 Accordingly, I am not satisfied the Tribunal failed to consider the claims made by the applicant. I am not satisfied that there was jurisdictional error on the part of the Tribunal. I am not satisfied that there was any error on the part of the Federal Circuit Court Judge. As the applicant has been unable to establish any likely success in the grounds of appeal that he would pursue were the extension of time granted, and then leave to appeal also granted, there is no utility in granting the extension of time. 17 Accordingly, the application for the extension of time and leave to appeal should be refused. The applicant should pay the Minister's costs in relation to one day of the hearing of this application. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.