Cso16 v Minister for Immigration and Border Protection
[2017] FCA 1012
•21 August 2017
FEDERAL COURT OF AUSTRALIA
CSO16 v Minister for Immigration and Border Protection [2017] FCA 1012
Appeal from: Application for extension of time and leave to appeal: CSO16 v Minister for Immigration & Border Protection [2017] FCCA 386 File number: NSD 388 of 2017 Judge: YATES J Date of judgment: 21 August 2017 Catchwords: MIGRATION – application for an extension of time to seek leave to appeal from judgment of the Federal Circuit Court – application denied Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa)
Federal Court Rules 2011 (Cth) r 35.13(a)
Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a)
Date of hearing: 21 August 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the Applicant: The Applicant appeared in person, assisted by an interpreter Solicitor for the First Respondent: Ms M Donald of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent did not appear ORDERS
NSD 388 of 2017 BETWEEN: CSO16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE OF ORDER:
21 AUGUST 2017
THE COURT ORDERS THAT:
1.The Application for extension of time and leave to appeal filed on 20 March 2017 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
YATES J:
INTRODUCTION
The applicant seeks an extension of time to seek leave to appeal, and leave to appeal, from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) pronounced on 2 March 2017 following a show cause hearing: CSO16 v Minister for Immigration & Anor [2017] FCCA 386.
Leave to appeal is required because the judgment of the Federal Circuit Court is interlocutory in character. Pursuant to r 35.13(a) of the Federal Court Rules 2011 (Cth), an application for leave to appeal must be filed within 14 days after the date on which the judgment to be appealed from was pronounced. That was not done here. The present application was filed on 20 March 2017, four days after the relevant date.
The first respondent, the Minister for Immigration and Border Protection (the Minister), accepts that there would be no prejudice if time were to be extended in the present case. The Minister also accepts that the length of the delay in filing the present application is not substantial. The Minister nevertheless submits that time should not be extended because the applicant has failed to provide a reasonable explanation for the delay and, of primary importance, because the applicant’s proposed application for leave to appeal does not have sufficient prospects of success to warrant time being extended.
I am not persuaded that time should be extended. Leaving to one side the reasonableness or otherwise of the applicant’s explanation for the obviously short delay involved, his proposed application for leave to appeal is without merit. No purpose would be served by extending time.
BACKGROUND
At [2] of his reasons for judgment, the primary judge summarised the applicant’s background circumstances:
2.The applicant, a citizen of Nepal, arrived in Australia on 9 January 2013 as an irregular maritime arrival. On 23 May 2013, the applicant lodged an application for a protection visa. The applicant set out his claims to fear harm in Nepal in a statutory declaration dated 22 May 2013 and annexed to his protection visa application. In summary, the applicant claimed to fear harm on the basis that:
a.From 2007, the applicant worked in an illegal business exporting red sandalwood. The police often intervened in the smuggling activities, and arrested and detained the smugglers. The applicant was in constant danger of being caught by the police.
b.The police raided his worksite and detained and arrested some of his colleagues. He was told that he was on a wanted list and he feared that he would be arrested, detained, and forced to provide information to the police about the smugglers. He went into hiding in Kathmandu because he feared for his safety.
c.The police investigated him and questioned his wife about his involvement with the smugglers and his whereabouts. The smugglers also questioned his wife about him. His wife and child moved to Kathmandu. He feared that the smugglers would kill or harm him because they suspected that he informed or would inform the police about them.
d.If returned to Nepal, he feared that the smugglers would kill, torture and/or force him to work for them. He feared harm because they suspected he had informed on them to the police and/or because he was perceived to have rejected and betrayed them.
e.He feared he would be detained, tortured or harmed by the police to make him inform on the smugglers. He feared he would be imputed with a political opinion of opposition to the government because of his participation in smuggling and because he refused to cooperate with the police. The authorities could not protect him because it was the police from whom he feared harm.
On 28 November 2014, a delegate of the Minister refused to grant the applicant a protection visa. On 4 December 2014, the applicant sought review of the delegate’s decision. On 25 August 2016, the applicant appeared at a hearing before the Tribunal.
THE TRIBUNAL
The Tribunal found that the applicant was not a witness of truth, and that he had fabricated his account of the events on which he based his protection claims.
At [34]-[39] of its Decision Record, the Tribunal recorded the following findings:
34.Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has fabricated an account of events upon which he has based his protection claims. Findings of fact on the applicant's claims
35. The Tribunal has not accepted that the applicant has provided truthful evidence about his claims concerning Nepal (or his colleagues fleeing to India).
36. On the basis of the adverse credibility finding, the Tribunal does not accept that the applicant was involved in an illegal business exporting Red Sandalwood; that he was ever in any danger from (or of interest to) the police, Nepalese authorities or any smugglers; that he or his wife have ever been targeted by the police, Nepalese authorities or any smugglers or any other organisations, groups or persons; that he has been imputed with a political opinion by anyone; that he was or is on a wanted list; nor that his colleagues have been harmed or fled to India. The Tribunal is prepared to accept that the applicant worked in his village, but not that he was forced to or had no choice but to work with smugglers. The Tribunal finds that the applicant worked in his village and Kathmandu, but that he has not been honest about his work activities.
37.The Tribunal does not accept that the applicant or his family have ever come to the adverse attention of any person, organisation, group or authority.
38.The Tribunal does not accept that any of the consequences flowing from the applicant's claims are true (such as living in hiding in the village area or in Kathmandu, the police or smugglers questioning his wife, and his reasons for leaving Nepal or coming to Australia). The Tribunal does not accept his assertions that he fled Nepal in fear, and that he faced harm at the time from any persons, group, or organisation.
39.On the basis of the adverse credibility finding, the Tribunal has not accepted that the applicant has ever been targeted or suspected by the police, authorities (or any smugglers) of any wrongdoing, nor does it accept that there is any reason for anyone to impute him with involvement in illegal activity, as a person who would have information about smugglers, or as a person with a political opinion (including anti-government or non-cooperative with the authorities). It does not accept that there is any reason for him to be of interest to the authorities or on a wanted list upon return or thereafter. It does not accept that he faces a real chance or real risk of being forced to work with smugglers. It does not accept that he faces a real chance or a real risk of being killed, tortured, threatened, forced to do anything against his will nor of being perceived to have rejected and betrayed Red Sandalwood smugglers in Nepal nor of facing adverse attention or being at risk of harm from Nepalese police or authorities (or smugglers) for any reason. The Tribunal does not accept that the applicant faces a real chance or a real risk of being subjected to any harm for the reasons claimed.
The Tribunal was not satisfied that the applicant faced a real chance of serious harm for any reason, let alone a well-founded fear of persecution for a Convention reason should the applicant be returned to Nepal. The applicant was not, therefore, a person in respect of whom Australia has protection obligations. For this reason, the applicant did not satisfy the requirements of s 36(2)(a) of the Migration Act 1958 (Cth) (the Migration Act).
The Tribunal also considered the complementary protection provisions in s 36(2)(aa) of the Migration Act. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under that provision.
On 31 August 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
THE FEDERAL CIRCUIT COURT
The applicant raised eight grounds of review before the Federal Circuit Court. The primary judge rejected each of them. The primary judge made the general observation at [11] of his reasons that the applicant viewed the proceeding before the Federal Circuit Court as an opportunity to attempt to deal with the merits of the Tribunal’s adverse credibility conclusions.
As the applicant was unable to demonstrate an arguable case of jurisdictional error, the primary judge dismissed his application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), with costs.
THE PRESENT APPLICATION
In his draft notice of appeal, the applicant raised five grounds of alleged error in the Federal Circuit Court’s judgment, which he expressed as:
1.The Hon. Federal Circuit Court Judge made legal error by not considering Submission made before Administrative Appeal Tribunal (AAT) which does not follow rules of natural justice prescribed under Migration Act.
2.The Hon. Federal Circuit Court Judge made legal error in his judgement as Appellant made an application under FCC rules on 23rd September 2016 against the decision of AAT and the Hon. FCC Court consider it just Show cause application.
3.The Administrative Appeal Tribunal erred in its judgment that do not consider complimentary protection provision of the act if the Appellant sent back to his country of origin as he has come by boat.
4.The Hon. Federal Circuit Court Judge made legal error as short minutes of Registrar order dated 19th January 2017 allows Appellant to leave and file amended application, transcript until 17th March 2017 but hearing took place on 2nd March 2017.
5.The Hon. Federal Circuit Court Jude made legal error not considering the jurisdictional error by the AAT.
On 21 April 2017, the applicant was ordered to file and serve a written outline of submissions in support of his application. He did not do so. When at the present hearing I asked the applicant whether he had prepared his Application for extension of time and leave to appeal he told me that he had done so with the assistance of a friend, who is not a lawyer. When I asked the applicant whether he understood the grounds in his draft notice of appeal, he said “no”. When I invited the applicant to address me in support of his application, he replied that he had nothing to say.
The Court has been assisted by comprehensive written submissions filed by the Minister. Ms Donald, who appeared for the Minister, addressed me orally on these submissions. When invited to respond to the Minister’s submissions, the applicant, once again, replied that he had nothing to say.
In the main, I accept the Minister’s submissions.
Ground 1 of the draft notice of appeal is misdirected in that it alleges that the primary judge erred in failing to consider a submission made to the Tribunal. I will proceed on the basis that the applicant alleges that the Tribunal failed to consider a submission made to it and thereby denied him procedural fairness, and that the primary judge erred in not finding jurisdictional error on this basis. So understood, the applicant has not identified the “submission” to which this ground refers. Accordingly, this ground is without meaningful content and would fail for that reason alone.
Before the Federal Circuit Court, the applicant alleged that the Tribunal had reached an adverse conclusion “without considering written evidence provided”, and thereby denied the applicant procedural fairness. He did not identify the written material which, he said, the Tribunal had not considered. At [14]-[20], the primary judge rejected that ground, finding that it appeared that the Tribunal had considered all the written material placed before it by the applicant. His Honour did not see any basis to infer that any written materials, or the claims made in them, had been overlooked by the Tribunal. I see no error in that conclusion. I would add that, like the primary judge, I see no reason to conclude that the Tribunal denied the applicant procedural fairness.
Ground 2 of the draft notice of appeal appears to allege that the primary judge erred by considering the applicant’s application for judicial review on the basis of a show cause application. I see no error in the primary judge proceeding in that way.
Ground 3 of the draft notice of appeal alleges that the Tribunal did not consider the complementary protection provisions of the Migration Act when carrying out its review of the applicant’s application for a protection visa. The Minister points out that this ground was not raised before the primary judge and, for that reason, any appeal on that ground would be incompetent in the absence of leave being granted to raise it for the first time. I agree. In any event, this ground faces the insurmountable difficulty that the Tribunal did consider the complementary protection provisions of the Migration Act when reviewing the applicant’s application for a protection visa.
Ground 4 of the draft notice of appeal refers to a timetabling matter that is without consequence. At the time the show cause application was set down for hearing, the presiding Registrar made timetabling errors that included orders that, by 3 March 2017, the applicant file an amended application (giving complete particulars of each ground of review) and any additional affidavit evidence on which he proposed to rely, and that, by 17 March 2017, the Minister file and serve any affidavit evidence on which he proposed to rely. Plainly, these steps post-dated the hearing date that had been set for 2 March 2017. The primary judge noted this anomaly at [9]:
9.I also confirmed with the applicant and the Minister’s solicitor that they had had sufficient time to file any material for the purposes of today’s hearing. The applicant had filed nothing following his application and supporting affidavit. He confirmed that he did not wish to file anything further. I considered that this step was necessary because of what appeared to me to be anomalies in the timetable put in place by a registrar for today’s hearing.
In light of the matters noted by the primary judge, no viable ground of appeal is revealed by Ground 4.
Ground 5 of the draft notice of appeal is without meaningful content. It does not identify the alleged jurisdictional error of the Tribunal or the alleged legal error by the primary judge.
DISPOSITION
The present application should be dismissed, with costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 30 August 2017
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