CIA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1424
•19 August 2019
FEDERAL COURT OF AUSTRALIA
CIA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1424
Appeal from: Application for extension of time and leave to appeal: CIA18 v Minister for Home Affairs [2019] FCCA 525 File number: NSD 519 of 2019 Judge: KATZMANN J Date of judgment: 19 August 2019 Legislation: Migration Act 1958 (Cth), s 476
Federal Court of Australia Act 1976 (Cth), ss 24(1C), 37M
Federal Court Rules 2011 (Cth) rr 1.39, 35.13, 35.14(3)(c)
Cases cited: Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 297
House v The King (1936) 55 CLR 499
SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129
Date of hearing: 19 August 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 19 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr J Tsaousidis of DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 519 of 2019 BETWEEN: CIA18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
19 AUGUST 2019
THE COURT ORDERS THAT:
1.The application for extension of time and leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs.
3.The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (formerly Minister for Home Affairs).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is aggrieved by a decision of the Administrative Appeals Tribunal to refuse to grant him a protection visa. He is a Chinese national who claims to have fled China after being wrongly accused of espionage and tortured to within an inch of his life when all he had done was to accompany his uncle on a visit to Qingdao, a naval base, and take photographs. The Tribunal was unconvinced by his story because of his apparent lack of knowledge of Qingdao, which suggested that he was not recounting a lived experience; and because of inconsistencies in his account and other matters reflecting on its credibility.
The applicant applied to the Federal Circuit Court for judicial review. The proceeding was commenced by the filing of an application to show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of the Tribunal’s decision. The remedy the applicant sought was an order that the decision be quashed and that a writ of mandamus be issued, directed to the Tribunal, requiring it to determine his application according to law. On 5 March 2019 the primary judge dismissed the application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCCR), which gives the court the power to dismiss a show cause application if it is not satisfied that the application has raised an arguable case for the relief claimed.
The applicant wants to appeal from the judgment and orders, but, since the judgment was interlocutory (see FCCR, r 44.12(2)), he requires leave to do so: Federal Court of Australia Act 1976 (Cth), (FCA Act) s 24(1C). Unless an order is made by the Federal Circuit Court itself, an application for leave to appeal must be filed within 14 days after the date the judgment was pronounced or the order was made: Federal Court Rules 2011 (Cth) (FCR or Rules), r 35.13. In this case, the judgment was pronounced and the orders were made on 5 March 2019, which means that any application for leave to appeal should have been filed by 19 March 2019. That did not occur. Rather, on 5 April 2019 the applicant filed an application for an extension of time and leave to appeal. The application is opposed.
The show cause application contained two grounds, which read, without alteration, as follows:
1. On 1 June 2014 my uncle … arrived from Taiwan for a relative visit. He was a retired Navy officer in Taiwan. I travelled with him to Qingdao. By the sea, I took photo of him with the warship as background for which I was to attend the police bureau. My uncle was arrested. The police forced me to confess I was roped into his espionage group and served him. I couldn't confess it. They cruelly tortured me. My wife [spent] RMB 200,000 to get me out on bail, waiting for the news from the police. With such a wrong case, I would receive more unjust and unfair treatment if I remained in China. As there would be no good end for me in China, our two families all asked me to leave China
2 The member, Angela Cranston failed taking my whole suffering into account and made a decision of refusing my application for reviewing the DIBP decision. I believe that the member made jurisdictional error in his decision.
The primary judge was not satisfied that the show cause application raised an arguable case for the relief claimed for the following reasons.
First, the applicant’s submissions only addressed questions of fact relating to the political climate in China, the tense state of relations between China and Taiwan, incidents of espionage attracting severe punishment, and efforts by the Chinese Communist Party to tighten domestic social controls.
Secondly, the first ground in the show cause application merely restated the claims that were before the Tribunal. The Tribunal considered those claims but did not accept that the applicant was credible and therefore that he and his uncle actually went to Qindao.
Thirdly, without further particulars, ground 2 was incapable of establishing jurisdictional error in the Tribunal’s decision.
The grounds of the application in this Court are in the following terms, without alteration:
On 01/06/2014, my uncle, the retired military officer of the Taiwan Navy, …went back China to our hometown to visit our family. He said that he loved the sea, so I accompanied him to Qingdao to play. Took some photos of him at the dock where the warships were docked. We played in Qingdao for three days, back to Dalian, he would not let me take time off to accompany him. He himself went to Dalian himself On 15/06/2014, police took me to local Public Security where they told me that my uncle was a spy from Taiwan and was arrested while taking photos at Dalian Jungang. I am scare to death. They forced me to explain why I took pictures of him in Qingdao Jungang and collected intelligence. They also forced me how he absorbed me as his spy. I said that my uncle did not ask me to collect intelligence and be a spy. The police beat me with a electric baton. I was knocked down and fainted the ground I woke up, I was lying in a hospital bed. My wife spent 20,000 yuan, and the trustee kept me out and waited for their final verdict. I was forced to come to Australia to seek refuge.
However, THE ADMINISTRATIVE APPERLS TRIBUNAL member did not seriously consider my experience and refused my refugee application. The ADMINISTRATIVE APPEAL TRIBUNAL member made. juristicional errer while making his decisio.
THE FEDERAL CIRCUIT COURT maintains ADMINISTRATIVE APPEALS TRIBUNAL decision.
I have to make appeal from the Federal Circiut Court of Australia.
An application for extension of time must be accompanied, amongst other things, by an affidavit stating “briefly but specifically” the facts relied upon and the reason or reasons the application was not filed within time: FCR, r 35.14(3)(c). The applicant’s application was accompanied by an affidavit but the affidavit neglected to mention either the facts on which the application relies or the reason(s) the application was not filed within time. It did annexe a draft notice of appeal, but the draft notice of appeal merely replicated the grounds of the application.
The power to extend time is expressly conferred by r 1.39 of the Rules. The Court’s power is broad but, like any power under the Rules, it must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: FCA Act, s 37M.
Section 37M apart, there are no express constraints on the Court’s power to grant leave to appeal. But it is well established that leave to appeal will generally not be granted unless it appears that the judgment in question is attended with sufficient doubt to warrant it being reconsidered and, on the assumption that the judgment is wrong, that substantial injustice will result if leave is refused: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 297 at 398–399.
The applicant filed no submissions in support of his application. At the hearing, he merely reiterated his fears of harm should he be forced to return to China. He stated:
I hope you can provide me with the protection because if I go back to China I will be harmed…
[C]urrently the relationship between Mainland China and Taiwan is so bad. So if I return to China at this time, there definitely will be influences.
Although the delay in this case is entirely unexplained, it is not lengthy and the Minister does not suggest that he is prejudiced by it. The consequences for the applicant of refusing the application could be dire. For these reasons, if the proposed appeal had a sliver of merit, I would have been inclined to extend the time and grant leave to appeal. But it does not.
First, the applicant pointed to no error on the part of the primary judge and no error is apparent. Yet, to succeed on the appeal the applicant would have to demonstrate error: see, for example, SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. Moreover, given the discretionary nature of the power the primary judge exercised, the applicant would need to demonstrate that his Honour made an error of the kind described in House v The King (1936) 55 CLR 499 at 505. That is to say, he would need to show that his Honour acted on a wrong principle, was guided by extraneous or irrelevant considerations, ignored relevant considerations or made a mistake of fact, or that the decision was unreasonable or plainly unjust so that an inference should be drawn that the discretion miscarried.
In these circumstances, I am not satisfied that the judgment in question is attended with sufficient doubt to warrant it being reconsidered. Nor am I satisfied that substantial injustice will result if leave were refused,
Secondly, there is no reason to think that the Tribunal did not take the applicant’s claims seriously. In substance, the case the applicant wishes to pursue is nothing more than an application for merits review. It was not open to the court below to review the merits of the Tribunal’s decision. Nor is it open to this court. As Brennan J observed in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35–36:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
Neither the application nor the draft notice of appeal discloses any error on the part of the primary judge or any basis for interfering with the Tribunal’s decision. In these circumstances, the overarching purpose of the civil practice and procedure provisions would not be served by making the order sought.
Accordingly, the application should be dismissed with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 19 August 2019
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