SZVYL v Minister for Immigration and Border Protection

1. The application for an extension of time filed on 23 December 2016 be dismissed.
2. The applicant pay the costs of the first respondent, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The applicant has applied for an extension of time to appeal the judgment and orders of the Federal Circuit Court of Australia ("FCC") dismissing the applicant's application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) ("the Tribunal") affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant was only 2 days out of time for filing his notice of appeal and he explained in an affidavit in support of his application that he thought that the appeal time was 28 days (when in fact it is 21 days: r 36.03(1) of the Federal Court Rules 2011 (Cth)). Although the delay was minimal and explained, the first respondent opposed the extension of time on the basis that the proposed appeal has no merit. 2 The applicant is a citizen of Nepal. He claimed to fear harm in Nepal from Maoists including members of the Young Communist League and associated criminal groups because of his actual and perceived wealth; his political opinion in support of the Nepalese Monarchy and the Rastriya Prajatanra Party - Nepal ("RPP") and in opposition to the Maoists; and his pursuit of justice for the death of his brother at the hands of the Maoists. He claimed that the Nepalese authorities could not and would not protect him. He also claimed to fear that because he travelled to Australia on a fake passport, he would be detained at the airport in Nepal on his return there and would be subject to a jail term. 3 The Tribunal was not satisfied that the applicant faced a real chance of serious harm for the purposes of s 91R(1)(b) and s 91R(2) of the Migration Act 1958 (Cth) ("the Act") or significant harm for the purposes of s 36(2A) of the Act. The Tribunal detailed "significant, cumulative concerns" in relation to the applicant's claims about past harm in Nepal from Maoists which it considered "cast doubt on the overall truth of the applicant's claims that he has any profile in Nepal" which singularly or cumulatively gave rise to a real chance of serious harm and/or a real risk of significant harm in Nepal in the reasonably foreseeable future. The Tribunal was also not satisfied that Nepal's laws regarding the use of a fake passport would be imposed or administered in respect of the applicant in a way that amounted to serious harm for the purposes of s 91R(1)(b) and s 91R(2) of the Act or significant harm for the purposes of s 36(2A) of the Act. 4 The sole ground for judicial review was that "the Tribunal acted unreasonably in the manner in which it conducted the review". The particulars supporting that ground alleged that the applicant at the hearing requested further time to obtain documentary evidence of his complaints to the police in respect of the death of his brother and the Tribunal refused without reasonable justification to allow more time. 5 The Tribunal's reasons for not giving further time are at [24] of the decision. In summary, the Tribunal considered that the applicant had adequate time to provide any documentation in support of the claims made, which question 49 of Part C of the Protection visa application form prompted him to provide. The Tribunal also considered that the applicant had demonstrated an ability and willingness to use fake documentation to achieve a migration outcome in coming to Australia using a false passport and identity which suggested that he may be able to access other fake documents. The Tribunal considered that this would cast doubt on the veracity of any documentation he submitted. The reasons also disclose that while the Tribunal declined to delay finalisation of the matter in anticipation of such documentation being provided, it would consider any documentation submitted if it was received before the decision was finalised. As no further documents were provided to the Tribunal in the period between the hearing on 28 November 2014 and the decision on 8 December 2014, the Tribunal was not satisfied that the applicant in fact had reliable documentation evidencing his complaints to the Nepalese authorities in respect of claimed past incidents. The Tribunal found the applicant's evidence of having lodged complaints to the Nepalese authorities unconvincing. 6 The FCC concluded that the Tribunal's decision to refuse the adjournment was open to it and did not lack an evident and intelligible justification. The Court held that the exercise of power was not unreasonable in a legal sense. It also held that the Tribunal's reasoning was consistent with the scope, subject and purpose of the provisions governing the Tribunal's review including its power to adjourn the review and the requirements that it act according to substantial justice and the merits of the case and carry out its functions in a fair, just, economical, informal and quick manner. 7 The proposed notice of appeal raises five grounds, namely: 1. The FCC erred in failing to find that the decision of the Tribunal was affected by jurisdictional error. 2. The Tribunal member acted unreasonably in the manner in which it concluded the review. 3. The decision of the Tribunal was unreasonable or illogical or irrational. 4. The Tribunal misinterpreted the applicable law or misapplied the law to the facts. 5. The applicant was denied procedural fairness and Beach J's judgment in MZAFZ v Minister for Immigration and Border Protection should be applied. 8 There are no particulars to grounds 1, 4 and 5. 9 The particulars to ground 2 allege that at the Tribunal hearing, a request had been made for further time to obtain documentary evidence of the applicant's complaints to police and the death of his brother which was refused "without reasonable justification to allow more time". It is alleged that the Tribunal applied "its arbitrary views on this issue" and adopted illogical or unbalanced reasons in rejecting his claims. 10 The particulars to ground 3 similarly allege that the Tribunal's decision was infected with jurisdictional error because it was unreasonable, illogical or irrational. The stated basis for that allegation is the assertion that the applicant was a victim of Maoists due to his political view and membership of a particular social group as a businessman. 11 None of the proposed grounds have any substance. First, the FCC was correct to hold for the reasons given that the Tribunal's decision to refuse an adjournment to enable the applicant to produce more documents was not unreasonable in a legal sense, nor an arbitrary or capricious exercise of power without common sense or which was plainly unjust. No error of law is discernible in the Tribunal's refusal to adjourn the hearing of the proceedings further to allow more time to the applicant to provide further documentation. Secondly, the Tribunal's decision discloses reasons that provided a logical and probative basis for the Tribunal's adverse credit finding: cf. CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146. The Tribunal had regard to the inconsistencies in the applicant's evidence and critical aspects of his evidence that the Tribunal found were "vague, evasive and unconvincing". The Tribunal's ultimate adverse credit findings were open to it on the evidence and material before it. Thirdly, the ground relying on MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 ("MZAFZ") is misconceived. MZAFZ was concerned with the question of whether there was a denial of procedural fairness because of the failure of the Tribunal to disclose to the applicant of the existence of a certificate under s 438(1)(a) of the Act and give the applicant the opportunity to make submissions on the validity of the certificate. That issue does not arise in the present case. 12 Ground 4 is not particularised and the basis for this allegation was not identified. Reference to the particulars to grounds 2 and 3 indicate that this ground in substance would do no more than impermissibly seek to challenge the merits of the tribunal's decision and no identifiable jurisdictional error is disclosed. 13 Accordingly, as the proposed appeal lacks merit, there would be no utility in granting an extension of time and the application should be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.