CNZ18 v Minister for Home Affairs
[2019] FCA 822
•3 June 2019
FEDERAL COURT OF AUSTRALIA
CNZ18 v Minister for Home Affairs [2019] FCA 822
Appeal from: CNZ18 v Minister for Home Affairs & Anor [2018] FCCA 3028 File number: NSD 2215 of 2018 Judge: BURLEY J Date of judgment: 3 June 2019 Catchwords: MIGRATION – protection visa refused pursuant to s 65 Migration Act 1958 (Cth) – no jurisdictional error found by Federal Circuit Court of Australia – application for extension of time and leave to appeal – where no reasonable prospects of success on appeal – application dismissed Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12
Federal Court of Australia Act 1976 (Cth) s 24
Federal Court Rules 2011 (Cth) rr 35.13, 35.14
Migration Act 1958 (Cth) s 65
Cases cited: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 161 ALD
CNZ18 v Minister for Home Affairs & Anor [2018] FCCA 3028
Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 104 ALR 621
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123
Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585
Date of hearing: 21 May 2019 Registry: New South Wales Division: General National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: MinterEllison Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 2215 of 2018 BETWEEN: CNZ18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
3 JUNE 2019
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BURLEY J:
The applicant is a citizen of Malaysia who arrived in Australia on 11 February 2017. He applied for a Protection (Class XA) visa on 28 April 2017. On 10 August 2017 a delegate of the Minister for Home Affairs refused the application pursuant to s 65 of the Migration Act 1958 (Cth). The applicant then applied to the Administrative Appeals Tribunal for a review of the decision, which on 30 April 2018 upheld the decision of the delegate.
The applicant then applied to the Federal Circuit Court of Australia (FCCA) for judicial review of the decision of the Tribunal. The FCCA considered and dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth); CNZ18 v Minister for Home Affairs & Anor [2018] FCCA 3028. The applicant then filed an application for leave to appeal in this Court. Leave to appeal is required, because the decision of the FCCA was interlocutory and an appeal is not available without prior leave; s 24(1A) Federal Court of Australia Act 1976 (Cth) (FCAA). Furthermore, the application for leave to appeal was not filed within 14 days of the FCCA decision as required by r 35.13 of the Federal Court Rules 2011 (Cth) (FCR). Accordingly, the applicant requires an extension of time under FCR 35.14.
The applicant filed an affidavit in support of his application which attaches copies of the decisions of the FCCA and the Tribunal. Under the heading “Grounds” in his application, the applicant does not set out any basis for challenging the correctness of the reasoning of the FCCA or Tribunal, but sets out an explanation for the late filing of the application. In short, it is: that he did not have legal assistance in filing the application; that he sought legal advice but could not afford it; that he sought an exemption from the payment of filing fees for the application; and that immediately upon the grant of the exemption he filed the application.
The applicant relies on a draft Notice of Appeal dated 28 March 2019 that identifies the following grounds:
(1)That the decision has a judicial error (which I shall take to refer to jurisdictional error);
(2)That the decision was incorrect because the Tribunal used information in the judgment and was biased against the applicant.
The applicant represented himself at the hearing with the assistance of an interpreter. Prior to the hearing he had made two written applications for an adjournment of the hearing, each of which was refused. The respondent was represented by MinterEllison solicitors, who filed written submissions in advance of the hearing.
In considering the question of whether to grant leave to appeal from an interlocutory decision, the Court must take into account the statements of principle set out in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 104 ALR 621 (Sheppard, Burchett and Heerey JJ). The Court will generally grant leave to appeal where the applicant shows that there is sufficient doubt as to the correctness of the judgment subject to the proposed appeal to warrant review and, further, if that judgment is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62] – [63] (Mortimer J).
For the reasons set out below, I do not consider that the application has sufficient prospects of success to warrant the grant of leave to appeal.
The Tribunal summarised the claims and the evidence provided by the applicant. The applicant claimed to have borrowed about AU$10,000 from a loan shark in Malaysia, and to have been unable to repay it within the stipulated period. He stated that he fears that the loan shark will maim or kill him if he returns to Malaysia before paying off the debt.
There were a number of aspects of the evidence given by the applicant that led the Tribunal to the view that his claims were not credible and should be rejected. The Tribunal found that it was plausible, though far from certain, that the applicant had some debts, but did not accept that the applicant borrowed money from a loan shark. It noted that the applicant first claimed that he borrowed the money to repay a bank loan, and then at the hearing changed his version of events to say that the loan was in order to finance the importation of a car into Malaysia. The Tribunal did not accept that either version was correct. It found that there were inconsistencies and a lack of supporting evidence in his account of the loan and the circumstances that led him to turn to a loan shark. It found that he gave a “starkly different” account of events at the hearing compared to the version set out in his written application for the visa. Ultimately the Tribunal rejected the claims that: the applicant had fallen behind in loan repayments; that a loan shark harassed, threatened or otherwise harmed him; or that he lived in fear in Malaysia. It also rejected his claim that he fled Malaysia fearing persecution or significant harm from a loan shark.
Before the FCCA the applicant relied on the following grounds:
1. The decision were made with jurisdictional errors.
2. The decisions were made without concrete proves.
3.I was requested to send an appeal to Administrative Appeals Tribunal for consideration on my application.
4.I am under a house rental agreement for 1 year term that is going to end by February 2019.
5. I am the breadwinner of my family and my wife is currently pregnant.
6.I need to save some money before I go back to Malaysia because I have to settle all the debts.
7.I am begging for your consideration to allow me to stay for another several years so that I can earn and save some money for my family. Your consideration is much appreciated and thank you for your kind attention.
None of those grounds identify any particular basis upon which it may be said that the Tribunal fell into jurisdictional error. Grounds 1 and 2 address the decision of the Tribunal in a general way, but with no particulars of errors. Grounds 3 – 6 concern the current circumstances of the applicant, and ground 7 is a heartfelt request for reconsideration of the decision of the Tribunal.
In this context it is noted that neither this Court nor the FCCA has power to grant a visa to the applicant, which is a matter for the Minister. The jurisdiction of the FCCA is limited to considering whether the Tribunal’s decision to uphold the refusal to grant the applicant the visa is unlawful under the Act; that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under s 24 of the FCAA.
It is not apparent to me that the FCCA made any error in rejecting each of the grounds advanced by the applicant before it.
In the first draft ground of appeal advanced in the present application, the applicant contends that the decision involves jurisdictional error. Although the ground does not identify the decision-maker said to have fallen into error, it is appropriate to give a self-represented litigant the benefit of the doubt and I shall take it that the allegation is that the Tribunal fell into error, and that the primary judge erred by failing to find that there was such an error. However, in the absence of particulars, the ground as broadly expressed has no content. In my view and having regard to the decision of the Tribunal, it is not apparent that it fell into jurisdictional error. In particular, I note that the keystone to the Tribunal’s rejection of the applicant’s claims is that it did not accept them as credible having regard to the evidence before it. It is possible that findings of credit may amount to jurisdictional error; for instance, where they fall within the concept of legal unreasonableness, or amount to a finding without a logical, rational or probative basis, or amount to a failure to give a proper, genuine and realistic consideration to the issues and material before the decision-maker; see BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 161 ALD 441 at [32] – [38] (Perram, Perry and O’Callaghan JJ). However, I do not consider that the decision of the Tribunal reflects any such error.
In the second draft ground of appeal, the applicant contends that the decision was incorrect because the Tribunal had regard to incorrect information, and was also biased against him. The first of these contentions is, in reality, no more than a challenge to the merits findings of the Tribunal. It does not form the basis upon which this court may make a finding of jurisdictional error. The second is unsupported by any explanation as to the basis upon which it may be said that bias arose. It is not apparent from the reasoning of the Tribunal. It may be that the applicant contends that because the Tribunal found against the applicant, the findings are inherently biased, although the applicant was unable to develop that point at the hearing. Such a submission would be no more than a complaint regarding the findings of the Tribunal and would amount to a request for a merits review. In any event, the applicant has provided no basis upon which a fair-minded lay person may be caused to think that the Tribunal did not bring a fair and impartial mind to the making of the decision; Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223 at [37] (Rares, Jagot JJ).
Having regard to each of the proposed grounds of appeal, my evaluation of the prospects of success, on a reasonably impressionistic level, is that neither has reasonable prospects of success. I consider that the applicant has adequately explained the reason for filing his application a short period out of time, and no prejudice flows to the respondent as a result of that delay. I have also considered the adverse consequences to the applicant in the event that leave is refused; nevertheless, the weakness of the grounds advanced compels me to the conclusion that it is not in the interests of the administration of justice to grant the leave sought, even had the application for leave been filed within time.
Accordingly, the application must be dismissed. The applicant must pay the first respondent’s costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 3 June 2019
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