BHY16 v Minister for Home Affairs
[2019] FCA 1907
•19 November 2019
FEDERAL COURT OF AUSTRALIA
BHY16 v Minister for Home Affairs [2019] FCA 1907
Appeal from: Application for extension of time: BHY16 & Ors v Minister for Immigration & Anor [2019] FCCA 1080 File number: VID 494 of 2019 Judge: BEACH J Date of judgment: 19 November 2019 Catchwords: MIGRATION – application to extend time to seek leave to appeal – application refused Date of hearing: 15 November 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 40 Counsel for the Applicants: The First and Second Applicants appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr D Brown Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 494 of 2019 BETWEEN: BHY16
First Applicant
BHZ16
Second Applicant
BIB16 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BEACH J
DATE OF ORDER:
19 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The applicants’ application for an extension of time be dismissed.
2.The applicants pay the first respondent’s costs of and incidental to the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BEACH J:
The applicants are citizens of Malaysia, although of Indian ethnicity; they are practising Hindus and also apparently have a Tamil background. The first applicant is a 38 year-old male, the second applicant is his wife, and the third and fourth applicants are their young sons; it also seems that there is now another child of the marriage who is not a named applicant.
Before me last Friday was an application for an extension of time to seek leave to appeal from a decision of the Federal Circuit Court. For the reasons that follow, I would refuse that extension.
The applicants arrived in Australia on 9 March 2014 on Malaysian passports as the holders of Electronic Travel Authority (Subclass 601) visitor visas. On 15 May 2014 they lodged an application for Protection (Class XA) visas.
The first applicant detailed his claims for protection in that application. His wife and children made no separate claims; their status was as the first applicant’s family members.
On 28 July 2014 the first and second applicants were interviewed by a delegate of the Minister. At that time other claims were made. On 12 August 2014 the delegate refused to grant the protection visas.
The applicants sought review of that decision in the Tribunal. Written submissions were lodged with the Tribunal by the applicants’ representatives, together with statutory declarations made by the first and second applicants. They appeared before the Tribunal to give evidence and present arguments on 19 November and 10 December 2015. They were represented by their migration agent and assisted by a Tamil interpreter on each occasion.
On 9 May 2016, the Tribunal affirmed the delegate’s decision.
On 31 May 2016 the applicants filed an application for judicial review of the Tribunal’s decision in the court below. Two generic grounds of review were asserted and un-particularised. Procedural orders were made at a directions hearing on 9 November 2016, which was attended by the first applicant.
A hearing was listed before the primary judge on 7 December 2018, but the applicants, who were not legally represented at this time, did not appear. The application was dismissed for want of appearance.
On 4 January 2019 Kerdo Lawyers became the applicants’ solicitors on the record. An application and an affidavit in support was filed seeking the re-instatement of the application for review. But just after noon on 24 January 2019, Kerdo Lawyers filed a notice of discontinuance of that application to re-instate. Nevertheless at 2.15pm on the same day the primary judge conducted a hearing of that application. Apparently although the discontinuance was brought to his Honour’s attention, in the circumstances his Honour decided to proceed with the hearing. There was no appearance for or by the applicants. The application to re-instate was dismissed for want of appearance.
On 25 March 2019 the applicants filed a further application to re-instate supported by an affidavit.
On 17 April 2019 the primary judge heard this further application. The first applicant attended the hearing, assisted by a Tamil interpreter. He was unable to explain to his Honour what error he believed had been made by the Tribunal. His Honour then dismissed the application to re-instate and on 26 April 2019 published his reasons for that dismissal.
On 10 May 2019, an application for an extension of time seeking leave to appeal from the orders made by the primary judge on 17 April 2019 was filed in this Court. This was some nine days out of time. Rule 35.13 of the Federal Court Rules 2011 (Cth) requires leave to appeal applications to be filed within 14 days of the date the judgment was pronounced or the order was made in the court below; 14 days from 17 April 2019 was 1 May 2019, which was nine days before the filing of the present application.
An affidavit was filed by the first applicant in support of the application that asserted that the applicants had a reasonably arguable case, and that the primary judge made an error by dismissing the second application to re-instate on 17 April 2019. Further, it was said that the first applicant was not aware of the time limit for filing the necessary notice of appeal or at least application for leave to appeal in this Court.
The grounds set out in the draft notice of appeal assert the following matters.
First, a complaint is made that the applicants’ lawyer failed to appear on their behalf on 24 January 2019 before the primary judge and that the dismissal of the first application to re-instate was made in the applicants’ absence.
Second, an assertion is made that the applicants were denied an opportunity to put their case at the hearing of the second application to re-instate on 17 April 2019 by reason of the Tamil interpreter speaking a different version of Tamil to that spoken and understood by the first applicant.
Third, an assertion is made that on 17 April 2019 the primary judge dismissed the second application to re-instate without considering legal and factual errors made by the Minister (or the delegate) and the Tribunal; of course any errors of the former would be subsumed in and by the latter’s consideration.
Fourth, an assertion is made that the applicants were not afforded procedural fairness in the court below, and that making a decision in their absence, which I take to mean the dismissal of the first application to re-instate, was contrary to natural justice.
No written submissions were filed by the applicants prior to the hearing before me in support of their extension of time application including the proposed appeal grounds, although they were directed to do so. But during the hearing before me they handed up some material which I have considered and to which I will refer later.
The applicants part way through the hearing before me sought an adjournment on the basis of an absence of legal representation. I enquired how long they would require and was told that they needed time to earn more money to pay for a lawyer. Now I note that at the start of this year they had had a lawyer who had ceased acting and had refunded to them an amount of legal fees paid. This refund had occurred some time in June. But in any event they said that they needed further funds to afford a lawyer. I refused the adjournment. First, the time sought was unsatisfactorily open-ended. Second, they had had more than adequate time since June to obtain legal representation. Third, much of the history of this matter in the court below is one of non-appearance and delay. Moreover, since the Tribunal’s decision over three years ago, not once has there been any endeavour to articulate any legal or factual error made by the Tribunal that could arguably rise to the level of a jurisdictional error, whether before the primary judge or indeed before me. The applicants have had more than adequate time to address that question. In the circumstances, the adjournment sought was not justified and I refused it.
Let me turn to address the merits or otherwise of the present application.
The principles relevant to the exercise of discretion whether to grant an extension of time within which to seek leave to appeal are not in doubt. First, the length of the delay is a relevant factor. Second, the applicants must provide an acceptable explanation for the delay, and justify why it is fair and reasonable in the circumstances to extend time. Third, any prejudice to the Minister may militate against the grant of an extension, although on the flipside the absence of prejudice does not, without more, suffice to justify the grant of an extension. Fourth, the merits of the substantive application or appeal, if an extension were to be granted, are of central significance. If there are no reasonable prospects of success, then in the usual case an extension of time ought to be refused as an exercise in futility.
I am satisfied that the extension of time sought is short and has been adequately explained. Indeed, 14 days from the date the primary judge published his reasons takes you to 10 May 2019 in any event. Further, no prejudice would be caused to the Minister by the extension. But in my view this is a case where it is not appropriate to grant an extension of time as the proposed leave to appeal and appeal would have no reasonable prospects of success.
Before the primary judge, the applicants raised two generic grounds in their application for judicial review, but they provided no particulars. Further, no written submissions were filed on their behalf. Indeed at no time during the approximately three years that this matter lingered in the court below have the applicants adequately explained the basis for their contention that the Tribunal’s decision was affected by jurisdictional error. Indeed, when the first applicant was asked on 17 April 2019 to say what error the Tribunal had made, he replied that he had nothing to say; I will come to possible problems of interpretation later concerning what occurred on 17 April 2019.
In my view, the applicants’ grounds of judicial review below did not raise an arguable case. Further, the proposed notice of appeal before me says nothing meaningful about why the applicants contend that the Tribunal’s decision was affected by jurisdictional error. I am not satisfied that it would be proper to extend time in such circumstances.
Let me elaborate further on my conclusion. I should begin with my own brief observations concerning the Tribunal’s reasons.
The applicants’ claims as made in their application for protection visas were summarised by the Tribunal. Revisions and additions to such claims that had been made before the delegate were summarised by the Tribunal. Further, the applicants’ migration agent before the Tribunal made claims which were also noted and considered by the Tribunal concerning their Tamil/Indian ethnicity, their actual/imputed religion as Hindu and as “un-Islamic”, their imputed political opinions and their membership of particular social groups, namely Hindus who had built temples/shrines, and Tamils/Indians in dispute with organised crime gangs.
The applicants attended two Tribunal hearings, gave evidence and put arguments to the Tribunal. As I say, they were represented by a migration agent and assisted by an interpreter at both Tribunal hearings. I would note at this point that no material was put before the primary judge or put before me to suggest that the applicants were denied procedural fairness in the course of the Tribunal proceedings.
The Tribunal accepted parts of the applicants’ account, but rejected key elements of the applicants’ claims in relation to the mosque leader and the ‘77’ gang issues, on the basis of a detailed analysis of the claims made and the applicants’ evidence. The Tribunal gave reasons for rejecting key elements of the applicants’ account including the cumulative effect of its adverse findings in relation to the evidence put.
On my reading of the Tribunal’s reasons, the Tribunal undertook a thorough analysis of the applicants’ claims and the evidence put. It seems to me that the Tribunal’s findings were open on the material before it, and the Tribunal’s decision does not appear to have been affected by jurisdictional error.
As I have said, the grounds of judicial review raised below by the applicants were generic and un-particularised. They did not identify a proper basis for the primary judge to find that the Tribunal’s decision should be set aside. Further, at no time whether below or before me did the applicants meaningfully explain how it was said that the Tribunal’s decision was affected by jurisdictional error.
Let me now turn to the three proposed grounds of appeal raised before me; the fourth ground seems to be subsumed in the first and second grounds and I do not need to separately discuss it.
First, it appears to be said that the first application to re-instate was wrongly dismissed on 24 January 2019 because it was done in the applicants’ absence. But the applicants’ absence and the reasons and explanation for that absence seems to have been a function of what passed between the applicants and their then lawyer who had filed a notice of discontinuance. None of this bespeaks any irregularity or lack of procedural fairness attributable to the primary judge. He was entitled to dismiss the first application to re-instate for non-appearance. But in any event, whatever disadvantage occurred to the applicants on that occasion was superseded by the second application to re-instate, which was entertained by the primary judge on 17 April 2019 and at which the applicants appeared. Moreover, although I am not enamoured of the primary judge’s reference in [35] of his reasons to 24 January 2019, which in my view should have been a reference more to 7 December 2018, the decisive consideration for his Honour in dismissing the second application to re-instate was that “the applicants did not demonstrate an arguable case on judicial review” (at [37]). So, even though his Honour’s reference to 24 January 2019 (at [35]) and his Honour’s reference to the notice of discontinuance being a bar (at [38]) were not desirable features of his Honour’s reasons, nevertheless his Honour rightly dismissed the second application to re-instate on the basis that no reasonably arguable case had been demonstrated on the judicial review grounds.
Second, it appears to be said by the applicants that there was a lack of procedural fairness on the hearing of the second application to re-instate based upon difficulties with language and interpretation. So it was said by the first applicant that he was not able to communicate with the primary judge and missed an opportunity to put the applicants’ case. I have read the transcript of what occurred before the primary judge on 17 April 2019. Notwithstanding the Minister’s submissions before me, I am not completely convinced that the applicants’ point is without any merit (see transcript p 3 line 36 to p 4 line 19), although the Minister’s reading of the transcript is well open. But the difficulty for the applicants so far as I am concerned is in persuading me that a real opportunity has been lost. The fact is that the applicants have had numerous opportunities orally and in writing to point to some reasonably arguable error in the Tribunal’s reasons which could amount to a jurisdictional error. But they have singularly failed to do so whether in the court below or in this Court. Indeed the basis for the adjournment application before me seemed to implicitly accept that they had not yet identified such an error. It was why they sought an adjournment to get legal advice. But this implicitly accepts that irrespective of language or interpretation difficulties on 17 April 2019, they had nothing cogent to proffer to the primary judge on that day in the way of any real argument seeking to establish an arguable jurisdictional error. In those circumstances, in my view on 17 April 2019 the applicants did not lose any real opportunity, even accepting in their favour that there may have been language or interpretation difficulties.
Third, the applicants have asserted “legal and factual errors made by the Minister and the Tribunal”. But no detail was given before me nor any detail given below. I gave the applicants an opportunity to provide some reasonable argument, but they failed to do so. They did seek to tender before me, which I permitted, some further written material, but none of this went to that question. Rather, that material went to the adjournment question and the first and second proposed grounds of appeal that I have discussed above.
In substance and in summary, the proposed grounds of appeal do not have reasonable prospects of success even if an extension of time was given and leave to appeal granted.
Now strictly, I am dealing with an application to extend time to apply for leave to appeal and the principles to be applied for the grant of leave are whether:
(a)in all the circumstances the decision below was attended by sufficient doubt to warrant its being reconsidered; and
(b)substantial injustice would result if leave was refused, supposing the decision to be wrong.
But ultimately, the underlying determinative question to be considered is whether the applicants ever had any real prospects of obtaining relief on judicial review in the court below. And as the grounds nominated in the application for judicial review as filed in the court below did not provide any proper basis for it to come to the view that the Tribunal had made a jurisdictional error, the application for judicial review could not have succeeded. The applicants did not have any reasonably arguable case on that application.
Now in my view the decision below was not attended by sufficient doubt to warrant it being reconsidered. But even if it was attended with sufficient doubt because of any language difficulties on 17 April 2019, there would be no injustice if leave was refused as no reasonably arguable ground for judicial review has ever been advanced whether below or before me; no reasonable opportunity was lost below to advance such an argument which even now the applicants have not been able to articulate let alone support; even if there had been no language difficulties on 17 April 2019 they still, apparently, on that day had nothing meaningful to say in support of asserting any arguable jurisdictional error. Accordingly any application for leave to appeal has no real prospects of success. Thus, granting an extension of time to seek leave to appeal would be futile. The application to extend time will be refused with costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach. Associate:
Dated: 19 November 2019
SCHEDULE OF PARTIES
VID 494 of 2019 Applicants
Fourth Applicant:
BIC16
0