BZO17 v Minister for Immigration and Border Protection
[2018] FCA 384
•9 March 2018
FEDERAL COURT OF AUSTRALIA
BZO17 v Minister for Immigration and Border Protection [2018] FCA 384
Appeal from: Application for extension of time: BZO17 v Minister for Immigration and Anor [2017] FCCA 2085 File number: QUD 487 of 2017 Judge: LOGAN J Date of judgment: 9 March 2018 Catchwords: MIGRATION – application for extension of time – application for adjournment due to illness – appearance and ability to communicate – no prospects of success – dismissed. Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Date of hearing: 9 March 2018 Date of last submissions: 5 March 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Counsel for the Respondents: Mr B McGlade Solicitor for the Respondents: Clayton Utz ORDERS
QUD 487 of 2017 BETWEEN: BZO17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
9 MARCH 2018
THE COURT ORDERS THAT:
1.The application for an adjournment be dismissed.
2.The application for an extension of time to file an appeal be dismissed.
3.The applicant pay the first respondent’s costs, of and incidental to the appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised From Transcript)LOGAN J:
The applicant is a citizen of Bangladesh. He is from the Jamalpur District and an adherent to the Sunni branch of the Muslim faith. On 15 August 2016, he made application under the Migration Act 1958 (Cth) for what is known as a Safe Haven Enterprise visa. He claimed to fear harm as a result of his refusal to work for a political party, the Purba Banglar Sarbahara Party (PBSP), in that country, which had attempted to recruit him. A delegate of the Minister for Immigration and Border Protection refused that visa application on 6 January 2017. That decision came to be reviewed by the Immigration Assessment Authority (the Authority). On 29 March 2017, that Authority decided to affirm the decision of the Minister’s delegate.
The appellant then sought the judicial review of the Authority’s decision by the Federal Circuit Court. He had the benefit of representation by counsel and solicitor in the proceedings before that court. On 31 August 2017, that court dismissed with costs the applicant’s judicial review application.
On 22 September 2017, the applicant filed in this Court an application for an extension of time within which to appeal against the order of dismissal made by the Federal Circuit Court. The granting of an extension is required because the applicant failed to file within the prescribed 21-day period a notice of appeal.
The application is supported by an affidavit in which the applicant discloses that he thought that the time period was 28 days. It further appears that, from that affidavit, that he was disabused of his misunderstanding on 21 September 2017, when he saw a justice of the peace. It is obvious that, thereafter, he moved with great dispatch to file his extension of time application.
As the Minister quite appropriately accepted, the question in respect of this case is not really the adequacy of the explanation for the delay but, rather, the prospective merits of the appeal.
On 3 October 2017, a registrar of the Court made directions which, amongst other things, provided for the filing of written submissions. There were submissions filed on behalf of the Minister thereafter, but none were filed on behalf of the applicant. The application was listed for hearing on 2 January 2018, via an email sent by a registry officer to the parties.
On 6 March 2018, the applicant attended a general medical practitioner at Kilcoy. That medical practitioner has furnished a medical certificate which became part of Exhibit 1. The applicant relied upon this to seek an adjournment of the hearing of the application. That certificate contains the following statement:
The applicant will be unfit for normal duties from 6 March 2018 to 6 March 2018. [sic]
There was also reference in it to particular medical conditions with the statement then being made:
He is not suitable for representation to court in his current state. [sic]
The applicant is not, of course, to be visited with any criticism as to the particular medical practitioner’s command of the English language. Even so, the opinions expressed by that medical practitioner do not descend in detail as to how the particular conditions described impact upon an ability to argue a case in court. Further, the applicant did appear this afternoon and, to my direct observation, was able readily to communicate with me with the assistance of the interpreter. Further, at the time when the applicant attended on the medical practitioner, he had known for some two months that his case was to be heard today.
The nature of this afternoon’s proceeding is not that of any final determination in respect of an appeal; only, in effect, an investigation as to adequacy of explanation for delay and whether there exist sufficient prospects in the proposed grounds of appeal to warrant the granting of an extension. The applicant had had ample time to prepare in advance for a hearing of that nature prior to 6 March 2018. For these reasons, I was not persuaded that the case was one for an adjournment.
The proposed grounds of appeal are these:
1.The Judge of the Federal Circuit Court in his honourable judgement delivered on the 31 August 2017 failed error of law and relief under the judiciary Act. The Judge failed to find that the Immigration Assessment Authority (IAA) has not found any evidence in relation to my claims and thus its decision influenced by sufficient doubt.
2.Honourable Judge failed to hold that the IAA made an error of law when it did not take up and separately deal with the factual issues. The IAA failed to find low profile political activists are mostly persecuted because of their role for the party like BNP. The IAA failed to understand the persecution until political killing in Bangladesh under present dictatorial role in Bangladesh. The tribunal find the inconsistency between my entry interview and my there after my statement. The IAA member concluded that I will not suffer from any harm if I go to Bangladesh, which is not feasible.
3.I was denied procedural fairness, when the IAA member made opinion based on assumption and possibilities without any proper investigation which required by law. The IAA failed to assess the current situation in Bangladesh where thousands of my party leaders AND workers are arrested and killed by so called crossfire and harassed by the autocratic present Awami League Government & the Authority. It is well established that independent report like Amnesty International Country Reports. Present circumstance very danger for me, the Tribunal undermined the danger, I will face if I am compelled to return Bangladesh as returned asylum seeker. And also, I came by boat in Australia only protect AND safe my life.
4.Besides, the IAA did not follow the proper procedure as required by the Act in arriving my protection visa merit review application. Thus, the procedures that were required by the act or regulations to be observed, in connection with the making of the decision were not observed.
As to these proposed grounds, proposed Ground 1 is not, in my view, a meaningful ground of appeal. Proposed Ground 2 and proposed Ground 3 are each, in my view, impermissible solicitations to review on the merits. Proposed Ground 4 is cast at such a level of generality as to be devoid of meaningful content.
On a generous reading of proposed Ground 2, it may be that the applicant’s complaint is centred upon a failure on the part of the Authority to make a definitive finding as to the authenticity of certain documents which the applicant had produced in support of his application.
The Authority’s absence of satisfaction as to entitlement to the visa sought, or complementary protection was very much the product of a credibility assessment made by the Authority member of the applicant. The essence of the Authority member’s reasoning is to be found in para 18:
18.The delegate appears to have accepted implicitly accepted elements of this claim. However, I do not. The applicant did not mention these matters in either his arrival interview or statement submitted with the SHEV application. The applicant was expressly asked in the SHEV interview whether he had any problems with the Awami League, the authorities, the police or the courts, and made no mention of the attack or the past warrant. When the delegate raised the May 2013 claims later in the interview, the applicant claimed they were resolved, that the accusation that he had burnt the car was not correct, and that this had been ‘proved’. Even if this explains why he did not raise the claim in the SHEV application, it does not explain why he did not mention the past warrant or attack when asked about the Awami League, courts or authorities. Nor does it account for the omission of any reference to these matters in the arrival interview, which was prior to his making the 2013 statement. I do not accept that if the applicant had been attacked, his friend killed and a warrant issued, all apparently relating to his involvement with the BNP, that he would have failed to raise these matters when asked why he had left Bangladesh, or what he feared on return. For the reasons above, I do not accept any of the applicant’s explanations regarding the limitations of the arrival interview. The existence of the documents do not outweigh my concerns and I find the claims in the 2013 statement not credible. I am not satisfied there is a real chance of the applicant being harmed in connection with any of these claimed events.
It is a feature of the reasoning in that paragraph that, while the Authority member has taken into account the existence of the supporting documents tendered, he did not, having regard to particular findings of inconsistency, regard those documents as outweighing the findings made.
As the learned primary judge correctly appreciated (at para 36), the case is one to which the High Court’s judgment in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 is applicable. It is not only applicable, but fatal, as his Honour correctly found, to a challenge based on an absence of positive finding in relation to the authenticity of the documents tendered by the applicant.
An application for an extension of time is emphatically not an occasion on which to deal substantively with proposed grounds of appeal which can be regarded as arguable. It would be quite wrong to treat the threshold for arguability as if it were to be equated with success on an appeal. Even so, in the form in which they are cast, the four proposed grounds have no prospect whatsoever of success.
Further, even viewing them somewhat generously as an endeavour to resurrect the essence of the grounds pursued in the Federal Circuit Court, there is no prospect of success sufficient to warrant the granting of an extension of time. The credibility findings that were made were reasonably open and logically expressed, by the Authority member. The learned primary judge did not err in making such a conclusion.
For these reasons, the application for an adjournment is refused. Further, the application for an extension of time within which to appeal is dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 21 March 2018
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