SZVYJ v Minister for Immigration and Border Protection

The need for an extension of time, leave to appeal & the test to be applied 7 The dismissal by the Federal Circuit Court of the proceeding before it pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules is an interlocutory decision. 8 Rule 44.12 provides as follows: Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed - adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory. Rule 44.12(2), as that rule itself provides, removes any doubt as to the character of the decision being interlocutory. 9 Rule 35.13(a) of the Federal Court Rules 2011 (Cth) provides that an application seeking leave to appeal is required to be filed "within 14 days after the date on which the judgment was pronounced or the order was made". On the facts of the present case, the Respondent Minister contends that the Application for Leave to Appeal was filed one day outside that 14 day period. 10 Although the Respondent Minister accepts that the Court has power to extend the time within which an application for leave may be filed, an extension of time is opposed on the basis that the application for leave lacks merit. 11 No appeal lies as of right from an interlocutory decision of the Federal Circuit Court even if an application had been filed within 14 days. Leave to appeal is required: Federal Court of Australia Act 1976 (Cth) s 24(1A). 12 Leave to appeal may be granted where: the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered; and substantial injustice would result if leave were refused supposing the decision would be wrong. 13 Although these considerations are often repeated, they do not represent a "hard and fast rule": Tyne v UBS AG [2016] FCA 241 at [33], (2016) 338 ALR 624 at 631 per Edelman J citing Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156 at [29], (2011) 217 FCR 238 at 249 per Dowsett, Foster and Yates JJ. Justice Edelman there went on to observe that "the issues of 'sufficient doubt' and 'substantial injustice' are not wholly independent": Tyne v UBS AG [2016] FCA 241 at [44], (2016) 338 ALR 624 at 634. These two considerations nevertheless "provide general guidance which the Court should normally accept, [but] there … continue to be cases raising special considerations 'and the court should not regard its hands as tied in any case beyond this'": Rawson Finances Pty Ltd v Federal Commissioner of Taxation [2016] FCAFC 95 at [39], (2016) 103 ATR 630 at 641 per Robertson, Moshinsky and Bromwich JJ citing Decor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397 at 399 per Sheppard, Burchett and Heerey JJ. These two oft-repeated considerations "are not to be applied in a rigid way, having regard to the variety of interlocutory decisions which may be the subject of an appeal": Ferdinands v The State of South Australia [2017] FCA 32 at [13] per White J. 14 The appeal, if leave be granted, would also be an appeal from an interlocutory decision in respect to a matter going to the practice and procedure of the Federal Circuit Court. Any Grounds of Appeal would thus have to expose some error of the kind described in House v The King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTiernan JJ.

Procedural fairness - ss 424AA & 425 15 Section 424AA of the Migration Act 1958 (Cth) provides as follows: Information and invitation given orally by Tribunal while applicant appearing (1) If an applicant is appearing before the Tribunal because of an invitation under section 425: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) if the Tribunal does so - the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. (2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F). 16 Section 425 provides as follows: Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 17 The Particulars to the first proposed Ground of Appeal assert (without alteration) error by reason of the primary Judge failing to conclude that the Tribunal had acted in contravention of ss 424AA and 425 by reason of: raising "significant doubts as to Appellant's credibility" but failing "to raise it before the Appellant" and not providing "any particulars in this regard"; making findings "that Applicant's evidences about the Maoists' threats was 'confused, vague, changing and unconvincing'" but failing "to provide an opportunity to comment on that"; and failing "to provide additional time to provide information raised during the hearing". 18 None of these Particulars expose any reason to question the conclusions reached by the primary Judge. Each should nevertheless be briefly addressed. 19 As to the first of these Particulars, s 424AA applies to "information" rather than to an assessment as to a claimant's credibility based upon the materials before the Tribunal and any hearing that may be conducted. As explained by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, (2007) 81 ALJR 1190 at 1196 in respect to the term "information" as employed in s 424A: [18] … However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. See also: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 at [9], (2011) 241 CLR 594 at 598 to 599 per French CJ and Kiefel J. Nor does s 425 confer any entitlement upon a claimant to be informed during the course of a hearing of possible adverse findings as to credit which may be made by the Tribunal. A claimant is not entitled to be given a "running commentary" as to the manner in which a Tribunal may be assessing evidence as a hearing progresses: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22, (2001) 206 CLR 57 at 69 per Gleeson CJ and Hayne J ("Miah"). Their Honours there observed: [31] In considering the scheme of legislation relating to the exercise of a particular kind of power, it is necessary to pay regard to the practical context in which the decision-maker must consider whether to exercise the power. This may be of particular importance where, as here, the complaint is of a failure by the decision-maker to communicate something to an affected person before a decision is made. It is the potential for a decision to affect rights, interests, or legitimate expectations, that attracts the requirement of procedural fairness. But decisions of that character are made in varying contexts. Here we are concerned with a decision to be made following a formal application. The nature, and extent, of communication between applicant and decision-maker that is in contemplation, in such a general context, will vary. At one extreme, an application may be made to a judicial decision-maker, in a context in which curial standards of procedural fairness will apply to the fullest extent. Even in such a case, fairness does not require a judicial officer to make a running commentary upon an applicant's prospects of success, so that there is a forewarning of all possible reasons for failure. Most administrative decisions are made in circumstances where a much less formal and extensive form of communication than that which occurs in a court is contemplated. In many cases, it is not contemplated that the applicant will either see, or hear anything from, the decision-maker before the decision is made. 20 Neither s 424AA nor s 425 requires any different approach. It follows, with respect, that there was no breach of s 424AA or s 425 by the Tribunal not "rais[ing]" with the Applicant such doubts as it was experiencing with respect to his credibility. 21 With reference to the second Particular, the Tribunal's reasons for decision make repeated references to the fears the Applicant said he faced from Maoists. Those reasons thus state (in part) as follows (without alteration): 17. He claims that he has "been identified as a former soldier involved in the armed conflict with the Maoists and hard core supporter of the Monarchy and consequently have been harassed and targeted by the Maoists. The Maoists have targeted me as their enemy". He claims that he has been identified as such by the Maoists and their sympathisers/affiliates in Nepal. … Claimed past harm 20. In his written claims the applicant alludes to having been adversely targeted in Nepal on multiple occasions, stating that he has "… been harassed and targeted by the Maoists. The Maoists have targeted me as their enemy" and "I have encountered a lot of threats and harassment due to my political opinion and membership of a particular social group as a former soldier involved in armed conflict with the Maoists. I therefore fear the Maoists will take reprisals against me anytime even in the future." 21. In terms of specific incidents he states that, on 5 December 2012, the Maoists held him captive and accused him of spying and taking money from palace authorities. They demanded Rs "11,0000.00" "by January to March 2013" and threatened him with death if he didn't pay. He agreed to pay them "3,00000.00" and was released. He also told them he would pay the balance in 3 months and he was again threatened with death by "Maoist extortionists" if he didn't pay. He reported the incident to police but "did not get any assurance of protection" and his complaint "was simply ignored by the police and I was given no assistance at all". (Footnotes omitted.) The extract from the Tribunal's reasons which forms part of the second Particular provided by the Applicant appears in the following broader context of those reasons (without alteration): 25. When the Tribunal asked the applicant to elaborated on any other instances of threats, intimidation or harm he has experienced in Nepal he initially said he has been physically harmed before. When asked to elaborate he said he was "tortured mentally more than physically". When asked to give examples of the harm he experienced he said that "they have threatened me on the phone". When asked to detail those threats he said that "they said the central office of the Maoists have been talking about me". When asked if they ever said anything else he responded that "they would ask me if I am listening and would I do as they say". When asked what that means he said that they would ask for money as soon as possible and they said that he is aware of the Royal massacre and had to reveal everything. He said the massacre they were referring to happened in around Jestha 2058 (around June 2001) and that these phone threats commenced in around 2069, some ten or eleven years later. When asked why anyone would be threatening him so long after the claimed massacre and what they wanted him to reveal and to whom he said that they threated that if he didn't talk to them he would be killed. When the Tribunal repeated that it is struggling to understand why the Maoists would be pursuing him for information about a massacre which occurred in 2058 some eleven years later in 2069 the applicant changed his evidence, offering that they actually threatened him since 2059 and then took him captive for extortion in 2069. However the applicant's evidence regarding the above impresses the Tribunal as confused, vague, changing and unconvincing, casting further doubt on the truth of his claims that he was ever threatened, extorted or harmed in any way in Nepal, and casting doubt also on his overall reliability as a truthful witness. 22 These were findings made by the Tribunal upon the basis of the materials before it. They were findings open to be made and it is no part of the function of this Court to revisit findings of fact. And, as with the first Particular, there was no requirement imposed upon the Tribunal to foreshadow to the Applicant the findings it may be minded to make and afford a further opportunity for the Applicant to make submissions as to why such proposed findings should not be made: cf. Miah. The procedurally fair hearing to which the Applicant was entitled was a hearing consistent with the statutory regime but, more importantly, one in which he had an opportunity "to give evidence and present arguments" (s 425); he was not entitled during the course of the hearing to an "opportunity to comment" upon whatever may have been the Tribunal's assessment of the evidence being given. 23 The final Particular asserts a failure "to provide additional time". It may be accepted that any entitlement to be heard would normally carry with it an entitlement to a "reasonable chance" to be heard (cf. R v Thames Magistrates' Court; Ex parte Polemis [1974] 1 WLR 1371 at 1375 per Lord Widgery CJ), namely a reasonable amount of time in which "to give evidence and present arguments". But there is no basis upon which any conclusion can be reached that more time was requested. And there is no basis upon which any conclusion could otherwise be reached that the time in fact permitted did not provide adequate time to the Applicant in which to advance such evidence, materials and submissions as he saw fit: cf. Botany Bay City Council v The State of New South Wales [2016] NSWCA 243 at [82] to [84] per Sackville AJA (Bathurst CJ and Ward JA agreeing). 24 There is, accordingly, no reason provided by the first proposed Ground of Appeal to question the correctness of the decision reached by the primary Judge.

The absence of any denial of procedural fairness 25 The Particulars provided in respect to the second proposed Ground of Appeal assert (again without alteration) a failure on the part of the primary Judge "to comply with the principles of natural justice" by reason of: "adopting [the Tribunal's] decision where the independent country information was determined to assess Appellant's claim while personal circumstances of the Appellant were ignored"; failing "to observe and consider the Appellant was a self-represented litigant and about his capacity to conduct the case"; and failing "to consider that Applicant was not given the opportunity to properly explain his claims". The first of these Particulars, it may be noted, fails to support any argument as to the primary Judge having denied the Applicant natural justice or procedural fairness. The argument is more directed to the decision-making process of the Tribunal. Nor is there anything on the face of the primary Judge's reasons for decision which suggest any lack of procedural fairness being extended to the Applicant when he appeared before that Court. No affidavit has been filed by the Applicant exposing any reason to question the integrity of the decision-making process followed by the primary Judge. 26 Nor do any of the other Particulars expose any denial of procedural fairness on the part of the Tribunal. 27 If such deficiencies in the second Ground of Appeal are nevertheless left to one side, and if attention is focussed upon the substance of each of the three Particulars, no error is exposed. 28 Although the first Particular may potentially be construed as an argument that the primary Judge denied the Applicant natural justice by reason of a predisposition to simply endorse the findings of the Tribunal, and thereby not bring an impartial mind to the manner in which the Tribunal had proceeded, any such argument is without substance. The simple fact is that the primary Judge did not "adopt" the findings of the Tribunal. The course pursued by the primary Judge was the unexceptional course of setting forth the findings of the Tribunal as but a step in his consideration as to whether those findings exposed error. The two paragraphs of the primary Judge's reasons expressly referred to in the first Particular, namely paras [28] and [30], take the argument no further. 29 There is no substance to any argument sought to be raised by the first Particular. 30 Nor is there any substance in any argument sought to be raised by the second Particular. It is incorrect to assert that the primary Judge "failed to observe and consider that Appellant was a self-represented litigant". The body of the reasons for decision of the primary Judge expressly state that the "applicant appeared in person at the hearing before the Court" and that he "was assisted by an interpreter in the Nepali language": [2017] FCCA 1087 at [20]. The reasons provided also repeatedly expose the steps taken by the primary Judge to elicit or clarify the arguments sought to be advanced (e.g., at [21] and [24]) and the steps taken to explain the basis upon which the Court was proceeding (e.g., at [23] and [26]). And para [31] is an express recognition on the part of the primary Judge of the difficulties being experienced by reason of the Applicant being unrepresented and exposes the attempt by the primary Judge to properly understand the "complaint" there being addressed. Any suggestion that the primary Judge failed to have regard to the "capacity" of the Applicant to advance his claims is without substance, as is any argument that the primary Judge failed to properly attempt to elicit and understand the arguments sought to be advanced by an unrepresented litigant. None of the three paragraphs expressly referred to in the second Particular, namely paras [21], [26] and [32], take the argument any further. 31 There is equally no substance in any argument as to the Tribunal not being fully cognisant of the difficulties confronting the Applicant. The Tribunal's reasons for decision thus state in part as follows: 8. … The Tribunal's assessment is also informed by its detailed exploration of the applicant's claims when he appeared before it on 26 November 2014. During his Tribunal appearance the applicant communicated with the assistance of a Nepalese interpreter. He identified no issues regarding his capacity to participate in any aspect of the application or review process. An audio recording of the applicant's Tribunal hearing is available. The Tribunal has had regard to the above as well as to other material available to it from a range of sources, referred to, where relevant, in its considerations below. There is no reason to question the Tribunal's assessment that it conducted a "detailed exploration" of the claims being made and the fact that the Applicant raised "no issues regarding his capacity to participate in any aspect of the application or review process". 32 Nor is there any substance in any argument sought to be raised by the final Particular. The final Particular may be construed as either an argument as to a denial of procedural fairness on the part of the Tribunal or on the part of the primary Judge. No argument can prevail that the Tribunal denied the Applicant procedural fairness either because: the text of the reasons for decision of the Tribunal repeatedly expose the Tribunal seeking to elicit information from the Applicant and affording him an opportunity to respond; and/or in the absence of a transcript or other account as to the manner in which the Tribunal was proceeding, there is no basis upon which a finding could be made that the Applicant was not given an opportunity "to properly explain his claims". The primary Judge was correct to so conclude: [2017] FCCA 1087 at [24] to [26]. Nor can any argument prevail that the primary Judge denied the Applicant procedural fairness. There is simply no factual basis to support any such argument. 33 The second proposed Ground of Appeal, however it may be construed, does not expose any reason to doubt the correctness of the decision of the primary Judge.

CONCLUSIONS 34 An extension of time should be granted within which to file the Application for Leave to Appeal but leave should be refused. The proposed Grounds of Appeal expose no reason to doubt the conclusions of the primary Judge. 35 There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1. The time in which to commence the present proceeding is extended to 13 June 2017.
2. The Application for Leave to Appeal is dismissed.
3. The proceeding is dismissed.
4. The Applicant is to pay the costs of the First Respondent. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.