CSA17 v Minister for Immigration and Border Protection
[2018] FCA 1410
•28 August 2018
FEDERAL COURT OF AUSTRALIA
CSA17 v Minister for Immigration and Border Protection
[2018] FCA 1410
Appeal from: Application for leave to appeal and extension of time: CSA17 v Minister for Immigration & Anor [2018]
FCCA 313File number(s): NSD 336 of 2018 Judge(s): RARES J Date of judgment: 28 August 2018 Legislation: Migration Act 1958 (Cth)
Federal Court Rules 2011 r 36.03
Federal Circuit Court Rules 2001 r 13.03C
Cases cited: Jackamarra v Krakouer (1998) 195 CLR 516
R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Bienstein v Bienstein (2003) 195 ALR 225
House v The King (1936) 55 CLR 499
Date of hearing: 28 August 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No catchwords Number of paragraphs: 24 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms S A Given of HWL Ebsworth Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
NSD 336 of 2018 BETWEEN: CSA17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
28 AUGUST 2018
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.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an application for an extension of time and leave to appeal from a discretionary judgment of the Federal Circuit Court of Australia refusing to reinstate the applicant’s proceeding following its dismissal for his non-appearance on an earlier occasion: CSA17 v Minister for Immigration [2018] FCCA 313.
Background
The applicant’s proceeding was dismissed by the registrar when the applicant failed to appear on the first return date fixed at 10.15 am on 21 September 2017. The registrar noted that the matter was called within the Court and there was no appearance by the applicant at 11.10 am that day, namely 55 minutes after the time fixed in the notice of the first Court date and exercised his power under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 to dismiss the proceeding for failure of the applicant to appear.
The applicant’s substantive case sought constitutional writ relief in respect of the decision of the Administrative Appeals Tribunal given on 25 May 2017 to affirm the decision of the Minister’s delegate not to grant the applicant a protection visa.
The Tribunal’s decision
The Tribunal considered the applicant’s claims to fear persecution because he was a follower of the Yiguan Dao, also known as I-Kuan Tao. It found that this religion had been banned as a cult in China since the 1950s. It noted that the applicant arrived in Australia on a student visa on 5 June 2011, that was cancelled on 7 June 2013, but that he only applied for a protection visa on 20 August 2014. The applicant failed to attend an interview with the delegate on 26 June 2015 because it appeared that he had changed his address and had not received the invitation. On that day the delegate refused to grant the protection visa and the applicant applied to the Tribunal for review. He attended before the Tribunal and gave evidence to it.
In substance, the Tribunal did not accept the applicant’s claim that he was a follower of Tao in China, his parents and grandparents were followers or adherents of Tao or that they had been mistreated in China for that reason. It then reviewed the applicant’s claims in some detail, including his claim to have become a Tao practitioner in Australia, and rejected them in detailed reasons. It did not accept that he had regularly attended a Tao temple in Sydney from 2014 although it accepted that he had attended a temple in Campsie on some occasions. But it was not satisfied that the temple was a Tao temple or that he attended that temple regularly either. It found that the applicant had not even been able to name the leader of the temple and he did not provide any other independent evidence that the temple was a Tao temple.
The Tribunal found that his delay in applying for a protection visa in all the circumstances was not consistent with him having a genuine fear of persecution for reasons of the Tao religion or its practice and that his claim that he had first attended a temple at about the time of applying for protection in 2014 indicated that he did not have a genuine fear of persecution if he returned to China.
It found that he had legally left China on his own passport to come to Australia on his student visa. It found, for the same reasons as it had given about his credibility, that he was not entitled to complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth).
The proceedings before the trial judge
On 17 October 2017, the applicant filed his application in a case to resinate his proceeding together with an affidavit of 22 September 2017. In his affidavit, he stated only that he had been actively involved in Tao activities and that his action and performance has been evidenced by fellow practitioners of the Tao faith. He gave no explanation for his non-appearance before the registrar. His application in a case asserted, however, that his failure to attend the first Court date was that, first, he attended at 11.15 am and, secondly, he apologised for his delay in attending the Court, “due to traffic”.
When the matter came before the trial judge for case management on 31 January 2018, she directed the applicant to file and serve any evidence on which he intended to rely and to serve written submissions in support of his application for reinstatement.
At the hearing of the application in a case on 12 February 2018, the applicant confirmed to her Honour that he had not filed any documents. Her Honour explained to him the significance of there being no evidence to explain his delay and invited him to give oral evidence if he wanted the Court to have regard to what appeared to be the explanation in his application in a case. Despite this, he declined to give any evidence to explain his failure to attend the first return date before the registrar on time.
Her Honour considered that such explanation as he gave was inadequate to explain his arrival at the Court an hour after it had been listed for hearing. In the course of deciding to reject, as inadequate, the applicant’s explanation for his failure to attend the Court on time on 21 September 2017, her Honour very carefully reviewed the grounds of review in his original application, for which the applicant sought reinstatement, and his arguments. She found that all of them lacked any sufficient substance to make reinstatement of his application for review of any utility. Accordingly, the trial judge dismissed that application in the exercise of her discretion.
This application
The circumstances of the present application are that, following her Honour’s dismissal of the application for reinstatement on 12 February 2018, the applicant filed the present application only on 9 March 2018, 11 days later than the 21 days provided for in r 36.03 of the Federal Court Rules 2011. In his affidavit in support of that application, the applicant said that he disagreed with her Honour’s decision since he only attended the hearing 30 minutes late and had explained to the Court why, but that he never received a reply.
He claimed that he wished to have a further review in this Court to get, “a more fair decision.” He said that he had delayed filing this application due to his financial hardship and inability to pay the filing fee together with problems in obtaining assistance in filling out the right forms due to his limited English.
The applicant told me that he felt he had been treated unfairly only because he had not been on time when the matter was in the Federal Circuit Court. He said he was not a lawyer and could not provide any documents or other matters because he did not know anything more to provide. He felt that his claims had not been listened to carefully and that his lateness at Court had affected the prospects of his case being reinstated. He said that he was a follower of the Tao religion but that the Tribunal and her Honour had not understood the status of Tao and Buddhism in China. He claimed that he had been to the temple in Campsie, that he had been taught by his family and that he could be better protected if he were allowed to remain in Australia.
As I noted, the trial judge reviewed in some detail each of the grounds advanced in the dismissed application for which the applicant sought reinstatement, finding that none of them would have any prospects of success. Having read her Honour’s decision and the Tribunal’s, I agree for the reasons given by her Honour with those conclusions and her ultimate conclusion that the original application for judicial review of the Tribunal’s decision had so little prospect of success as to render reinstatement of no utility.
The draft notice of appeal set out five grounds, namely that:
(1)the Tribunal and her Honour had failed to consider the applicant’s explanation and documents that supported his appeal;
(2)he was a Chinese citizen who believed in Tao so that he would face persecution by the Chinese government due to those beliefs;
(3)he could not go back to China because he was scared that he would be sentenced and discriminated against;
(4)the Tribunal and her Honour did not consider his fears of persecution were he to return to his home country; and
(5)he disagreed with her Honour’s decision to dismiss his application to review the Tribunal’s decision because he had only attended 30 minutes late and had explained this to the Court but had never received any reply.
Consideration
An application for an extension of time in which to file an appeal or leave to appeal challenges a respondent’s vested right to obtain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] (and see also at 539-543 [66] per Kirby J). The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F, namely:
We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.
In addition, the criteria for granting leave to appeal are that the applicant must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice would result from a refusal of leave: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29].
This application involves a challenge to a discretionary decision on a matter of practice and procedure, namely a refusal to reinstate an application that had been dismissed because the applicant had failed to attend Court at the time the matter had been listed for its first Court date. The principles for challenging the exercise of a discretionary judgment are well established: House v The King (1936) 55 CLR 499 at 504 - 505 per Rich, Dixon and Evatt JJ.
In my opinion, the first proposed ground of appeal has no merit. Her Honour considered that the applicant’s explanation was totally inadequate. I agree. When her Honour invited the applicant to give evidence in support of his explanation, or, indeed, to elaborate on it, he refused to do so. There was no error in her Honour rejecting his assertions that were unverified and untested. That alone suffices to justify her Honour’s dismissal of the application for reinstatement. To the extent that the ground referred to the Tribunal, it, in substance, is repeated in ground 4.
The second and third grounds are simply attempts to have the Court engage in merits review of the Tribunal’s decision. Of course, the applicant is, as he said, not a lawyer and would not have understood that, in fact, his notice of appeal had to be addressed to challenging the exercise of her Honour’s discretion not to reinstate his case. But, in substance, what grounds 2 and 3 seek to do is contend that the Tribunal’s decision is susceptible of being overturned and therefore he had a case on the merits that he was entitled to have heard in the Court below. However, both grounds depended upon the Tribunal accepting his evidence which, however, it rejected comprehensively, as her Honour correctly found. Neither ground has any prospect of success.
The fourth ground asserted that neither the Tribunal nor her Honour considered properly his claims to fear persecution were he to return to China. That ground, to the extent it is not an attempt to engage in merits review, has no basis. Both the Tribunal and her Honour did consider both those claims: the Tribunal, from the point of view of assessing their merits, which it rejected, and her Honour from the point of view of assessing whether the Tribunal had carried out its function of reviewing the delegate’s decision in accordance with the provisions of the Migration Act. The ground has no substance on the material before me at all.
The fifth ground has no factual basis. As I have indicated, her Honour invited the applicant to give evidence about any subsequent attendance by him at the Court on 21 September 2017 or to explain why he was late on that occasion, but he chose not do so. There being no evidence to support the ground, it is doomed to fail.
Conclusion
For these reasons, in my opinion, the proposed appeal has no prospect of success and is nothing more than an abuse of process. I will dismiss the application for an extension of time and leave to appeal with costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 13 September 2018
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