AAB16 v Minister for Immigration and Border Protection
[2016] FCA 1375
•21 November 2016
FEDERAL COURT OF AUSTRALIA
AAB16 v Minister for Immigration and Border Protection [2016] FCA 1375
Appeal from: Application for extension of time and leave to appeal: AAB16 v Minister for Immigration and Border Protection [2016] FCCA 1904 File number: NSD 1392 of 2016 Judge: GRIFFITHS J Date of judgment: 21 November 2016 Catchwords: PRACTICE AND PROCEDURE – extension of time and leave to appeal – strength of proposed grounds of appeal – no arguable appealable error. Held: - application for extension of time and leave to appeal dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.12
Migration Act 1958 (Cth), ss 36(2)(a), 36(2(a)(a), 36(3)
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397
Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235
Date of hearing: 17 November 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 34 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms N Maddocks from DLA Piper Australia Counsel for the Second Respondent The Second Respondent submitted to any order the Court may make, save as to costs. ORDERS
NSD 1392 of 2016 BETWEEN: AAB16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
21 NOVEMBER 2016
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal dated 19 August 2016 be dismissed.
2.The applicant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
The applicant seeks an extension of time to seek leave to appeal from a decision of the Federal Circuit Court of Australia (the FCCA) dated 25 July 2016 (AAB16 v Minister for Immigration and Border Protection [2016] FCCA 1904).
The application was opposed by the Minister.
For the following reasons, the application must be dismissed.
Summary of background facts
The applicant is a citizen of Nepal. He arrived in Australia on 14 March 2002 holding a Business (Sub-Class 456) visa. On 20 November 2013 he applied for a Protection (Class XA) visa (the visa). He had previously applied for a similar visa on 23 April 2002. His earlier application was unsuccessful, as were his subsequent review proceedings in the then Refugee Review Tribunal (now the Administrative Appeals Tribunal (the Tribunal)), the then Federal Magistrates Court, the Full Court of the Federal Court and the High Court.
The Minister considered that the second protection visa application dated 20 November 2013 was valid having regard to SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 (SZGIZ).
The applicant claimed to fear harm in Nepal on the basis of his political opinion. He said that he was a member of the Communist Party of Nepal (Unified Marxist Leninist) (CPN (UML)), and that he feared harm because the authorities regarded him to be a Maoist. He also claimed to fear harm by the Maoists because of his political opinions. He claimed that, as a businessman in Nepal, the Maoists had extorted money from him.
The visa application was refused by the Minister’s delegate on 23 May 2014 on the primary ground that the applicant had a right to enter and reside in India and had not taken all possible steps to exercise that right, with the consequence that s 36(3) of the Migration Act 1958 (Cth) (the Migration Act) applied.
At the Tribunal’s hearing of the application for review of the delegate’s decision, the applicant gave oral evidence on 13 May 2015. Prior to the hearing, the applicant’s agent provided the Tribunal with a letter dated 13 November 2014, which contained submissions as to whether the Tribunal was confined solely to considering the applicant’s claims against the complementary protection criteria. It was submitted that there should be no such limitation. At the hearing, the applicant also provided the Tribunal with a copy of a “detailed statement” dated 28 April 2014. Following the hearing, by an email dated 19 June 2015, the applicant’s agent provided the Tribunal with further written submissions dated 18 June 2015 which set out country information in support of the applicant’s review application.
On 9 December 2015 the Tribunal affirmed the delegate’s decision not to grant the applicant the visa. The Tribunal found that, in the light of SZGIZ, it did not have the power to again consider the applicant’s claims for protection under s 36(2)(a) and it was confined to considering his claims under s 36(2)(aa) (i.e. the complementary protection criterion).
The Tribunal found that the applicant was not a credible witness and it did not accept any of his claims of involvement with, or membership of, the CPN (UML). It found that noone would consider the applicant was a Maoist, or a supporter of the Maoists, and did not accept that he was wanted by, or of any concern to, the authorities for any reason in Nepal. It concluded that it was not satisfied that the applicant was a person to whom Australia owed protection obligations under s 36(2)(aa) of the Migration Act.
The Tribunal’s core reasoning is reflected in the following paragraphs of its statement of decision and reasons:
50.I have carefully considered the claims and evidence of the applicant and do not accept any of his claims of having been involved in politics or having any interest in Nepalese politics as being true. As detailed above his knowledge of his claimed party is minimal at best and not of any such level as to demonstrate any involvement or interest. Further, his claimed involvement, even if it were true (and I do not accept that it is), ended many years ago. I do not believe that he would involve himself in any political party on return and consider he has claimed, and said, this only so as to have a claim of why he fears return. I find the claim to be opportunistic and made so as to extend his period of stay in Australia.
51.I consider the first statement made by the applicant at the hearing to be telling, that is that if he had to return to Nepal that he would. I consider he has no fear or concern of return apart from the fact that he hasn’t made enough money in Australia and has been here a long time. Neither of these matters is of a significance, or type of matter, as could be considered as significant harm.
52.Overall I find the applicant is not a credible witness I do not accept any of his claims of involvement with, or membership of, the CPN (UML) to be true. I do not accept any of the documents stating he has such an association to be true and I do not accept that anyone would consider he was so involved. I do not believe anyone would consider he is a Maoist, or a supporter of the Maoists, and I do not accept that he is wanted by, or of any concern to, the authorities for any reason in Nepal.
The FCCA proceedings summarised
The applicant sought judicial review of the Tribunal’s decision. The grounds of the judicial review application, which was filed on 4 January 2016, were as follows:
1.I am not satisfied with the Tribunal Member's decision as the Tribunal Member had made an error of law by heavily relying on its arbitrary views towards my claims and by failing or ignoring to give me justice according to the scope of complementary protection visa.
2.I argue that the Tribunal Member has not made a well-balanced decision in my case and I believe the Tribunal Member made a legal error in concluding that there is no real risk of being banned upon my return to Nepal when there was no evidence before it to that effect.
3.It is argued that the Tribunal Member completely ignored my circumstances and failed to act according to law.
The FCCA convened a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The primary judge delivered an ex tempore judgment in which he ordered that the judicial review application be dismissed pursuant to that rule. The primary judge’s reasons for taking his course may be summarised as follows:
(a)the applicant had failed to raise any argument of jurisdictional error on the part of the Tribunal and the Tribunal’s adverse credibility findings were open to it on the evidence, as also were the Tribunal’s adverse findings concerning the applicant’s documentary evidence;
(b)in relation to ground 1, the FCCA found that the applicant’s dissatisfaction with the Tribunal’s decision did not identify any jurisdictional error and the primary judge also found that there was nothing in the material before the FCCA which established any procedural unfairness, with the consequence that there was no jurisdictional error raised by this ground;
(c)in relation to ground 2, no arguable jurisdictional error was made out in circumstances where the primary judge found that the “Tribunal’s decision appears to be an orthodox review of the applicant’s claims and evidence” and it was open to the Tribunal to make adverse credit findings. The applicant’s contention that there was no evidence to support those findings was rejected as “not correct”; and
(d)in relation to ground 3, the primary judge found that no arguable jurisdictional error was raised by the applicant’s claim that the Tribunal had failed to address the applicant’s claims and evidence.
After referring to the need for caution in summarily dismissing such an application (citing Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118), the primary judge summarily dismissed the application after adding that, in substance, the three grounds of judicial review invited “an impermissible merits review and did not disclose any arguable jurisdictional error”.
The parties’ submissions summarised
The Minister submitted that the applicant had failed adequately to explain why he did not commence his proceeding within time. He submitted that it was the applicant’s responsibility to ascertain his rights of appeal and that it was insufficient for him to depose that he thought the deadline was 28 days from the date of judgment.
I do not accept that submission. I am prepared to proceed on the basis that the applicant, who represented himself, was not aware of the deadline notwithstanding that, as the summary of background facts above reveals, he is no stranger to litigation in this country. His delay was for a relatively limited period of 14 days.
The more important consideration in determining whether time should be extended relates to the merits of the proposed appeal. As the Full Court held in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397, in considering whether to grant leave to appeal from an interlocutory judgment, the applicant must show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, in addition, if it is assumed that the primary judgment is wrong, would substantial injustice be suffered by the applicant if leave to appeal were refused. I accept the Minister’s submission that these principles are relevant to a consideration of whether or not to extend time in order for the applicant to seek leave to appeal.
The draft notice of appeal identifies five proposed grounds (without alteration):
1.The Federal Circuit Court Judge erred by failing to find that the Tribunal Member made an error of law in that the Tribunal Member has deprived me of natural justice and fairness by failing to carry out its task constructively.
2.I argue that the Tribunal Member has not made a well-balanced decision by heavily relying on its arbitrary views towards my claims and by failing or ignoring to give me justice according to the scope of complementary protection visa.
3.It is contended that the Tribunal Member erred by overlooking my claims on the issue of my suffering from the Maoists in concluding that I had no political interest or opinion having regard to the material upon which it relied, that reliance being irrational and unreasonable. I claim the truth that I am a businessman and I am a victim of extortion by the criminals including the Maoists.
4.The Tribunal Member did not want to believe me because the Member appeared to establish disbelief of my credibility and ignored my entire evidence in which my case was taken in breach of the rules of natural justice.
5.It is unfair and I am a victim of the Tribunal Member's arbitrary views and premature mind towards my claims.
In this Court, the applicant failed to file and serve an outline of submissions in support of his application, in non-compliance with orders dated 30 August 2016.
When the matter was called on for hearing, the applicant appeared for himself and was assisted by an interpreter. The applicant’s oral submissions may be summarised as follows. As to ground 1, he submitted that he had not been given time to provide documents to the Tribunal. He then confirmed, however, that the documents he obtained from Nepal had in fact been given to the Tribunal in relation to his second application for a protection visa. It is evident from [36] of the Tribunal’s statement of decision and reasons that the four documents had been received by the Tribunal and were considered by it. There may have been some confusion in the applicant’s submission between the previous Tribunal hearing and the latest hearing.
The applicant confirmed that ground 2 overlapped with ground 1 and he did not raise any new submission.
As to ground 3, the applicant explained that his complaint was that the Tribunal was wrong not to accept his evidence regarding his political role and participation.
As to ground 4 , the applicant submitted that he had been denied procedural fairness because his case had not been considered properly and he asked the Court to “do justice”.
As to ground 5, the applicant submitted that he had come to Australia in order to have his human rights protected.
The Minister submitted that grounds 2, 3 and 4 of the draft notice of appeal were in similar terms to the judicial review grounds which had been rejected below and that these grounds had insufficient prospects to warrant time being extended. The Minister relied upon the primary judge’s reasons for rejecting these grounds at [12]-[14] of his Honour’s reasons for decision.
As to ground 1 of the proposed notice of appeal, the Minister submitted that this proposed ground substantially overlaps with the applicant’s claim below that he had been denied procedural fairness, a claim which was rejected by the primary judge. The Minister relied upon the primary judge’s reasons for rejecting this ground. Alternatively, to the extent that this ground covered territory which was not raised below, the Minister submitted that the applicant required leave to raise the ground, which should not be granted because of its lack of merit.
As to proposed ground 5, the Minister submitted that it appeared to involve an allegation of bias on the part of the Tribunal, a claim which had not been raised below which meant the applicant also required leave to raise it for the first time. The Minister submitted that it lacked sufficient merit to warrant the grant of such leave, noting in particular that the mere fact that the Tribunal had made adverse findings against the applicant did not of itself reveal bias or prejudgment and there was nothing to suggest that the Tribunal had not dealt with the application for review impartially and objectively.
Consideration
The Minister’s submissions should be accepted and the application for an extension of time dismissed. It is true that the primary judge’s reasons for judgment are not extensive but the applicant did not claim that they were so inadequate as to fall short of a proper discharge of the primary judge’s judicial function. Nor did the applicant identify any arguable appealable error in the primary judge’s reasoning for rejecting each of the three grounds raised in his judicial review application.
As is apparent from the summary above, the primary reason why the applicant failed before the Tribunal related to the adverse findings it made regarding his credibility. The Tribunal explained at some length why the applicant’s claims relating to his political activities were not accepted, including by reference to the Tribunal’s findings that the applicant’s knowledge of the relevant political party was “minimal at best and not of any such level as to demonstrate any involvement or interests”. The Tribunal also relied upon the fact that the applicant’s claimed involvement in politics had ended almost 13 or 14 years ago. The Tribunal explained why it did not accept the veracity of the documents relied upon by the applicant. It is clear from [36] and [52] that the Tribunal did consider the documentary material and explained why it did not accept that the material was genuine and reliable.
With specific reference to proposed ground 4, and the applicant’s oral submission that the Tribunal had not taken into account conditions in his country of origin at the time of its decision, this claim is unsupported by the Tribunal’s reasons. In particular, the Tribunal expressly stated at [27] that the political situation in Nepal had changed from the circumstances which existed when the applicant fled 13 or 14 years ago.
The proposed new grounds not raised below are not sufficiently strong to extend time and in his oral submissions the applicant added nothing of substance in respect of those grounds to indicate that they were arguable.
None of the proposed grounds of appeal has any arguable substance. The applicant has failed to persuade me, nor am I satisfied by my own review of relevant matters, that time should be extended. It is evident that the applicant is unhappy with the Tribunal’s decision as well as the FCCA’s summary dismissal of his judicial review case. I am satisfied, however, that his dissatisfaction fundamentally relates to the merits of the Tribunal’s decision.
He has been unable to identify any arguable jurisdictional error in that decision nor any arguable appealable error in relation to the FCCA’s decision.
Conclusion
For these reasons, the application for extension of time and leave to appeal should be dismissed, with costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 21 November 2016
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