EQG18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 2045
•19 November 2019
FEDERAL COURT OF AUSTRALIA
EQG18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2045
Appeal from: Application for extension of time: EQG18 and Ors v Minister for Home Affairs and Anor [2019] FCCA 1646 File number: QUD 340 of 2019 Judge: LOGAN J Date of judgment: 19 November 2019 Catchwords: MIGRATION – application for extension of time to appeal from a judgment of the Federal Circuit Court of Australia – where the Federal Circuit Court dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal – where the applicants did not appear before the court below – where the court below dismissed the application on the merits – where the Tribunal made credibility findings about the applicants’ claims – where the notice of appeal was only lodged shortly outside the prescribed time limits – whether the prospective appeal has sufficient merit for an extension of time to be granted Legislation: Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth)
Cases cited: EQG18 and Ors v Minister for Home Affairs and Anor [2019] FCCA 1646 Date of hearing: 19 November 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 15 Counsel for the Applicants: The first applicant appeared in person with the assistance an interpreter on behalf of all applicants Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
QUD 340 of 2019 BETWEEN: EQG18
First Applicant
EQH18
Second Applicant
EQI18
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
19 NOVEMBER 2019
THE COURT ORDERS THAT:
1.For the purposes of the application for an extension of time and any consequential appeal, the first applicant EQG18 be appointed as litigation representative for the third applicant EQI18, who is the child of the first applicant EQG18 and the second applicant EQH18.
2.The requirements of the Federal Court Rules 2011 (Cth) in relation to the prior filing of a consent and affidavit of a prospective litigation representative and otherwise relating to an application for that appointment be dispensed with. In lieu thereof, the statement of the first applicant EQG18 in open court, via the interpreter, consenting to that appointment, be deemed sufficient.
3.The appointment of the first applicant EQG18 as litigation representative for the third applicant EQI18 take effect nunc pro tunc on and from the filing of the extension of time application on 28 May 2019.
4.The application for an extension of time be dismissed.
5.The first and second applicants pay the costs of the first respondent fixed in the amount of $3,000.00.
6.The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
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 first and second applicants are respectively husband and wife. They are each citizens of India. The second applicant arrived in Australia on 25 September 2008 as the holder of a student visa. Her husband, the first applicant, accompanied her and was admitted to Australia as her dependant. The third applicant is the child of the first and second applicants, born in Australia on 4 May 2014. The second applicant’s student visa was cancelled on 25 June 2010. That had the consequence that, thereafter, while they remained in Australia, the first and second applicants were what the Migration Act 1958 (Cth) (the Act) terms unlawful non-citizens.
On 19 December 2014, the first and second applicants applied under the Act for what is known as a protection visa. Their child’s claim to a visa is dependent upon the merits of the first and second applicants’ visa application. The first and second applicants had married in India in 2006. The basis of their protection visa application was that they were from different samajs, or communities, although they were each patels. However, having married outside their samajs, or communities, they said that they feared persecution on that basis were they to return to India.
A delegate of the Minister, whose office is now known as the Minister for Immigration, Ethnic Affairs, Migrant Services and Multicultural Affairs (Minister), decided on 8 October 2015 to refuse the protection visa application. The applicants then sought the review of that decision by the Administrative Appeals Tribunal (Tribunal). On 12 August 2018, for reasons given in writing that day, the Tribunal decided to affirm the decision of the Minister’s delegate not to grant them a protection visa. The applicants then applied to the Federal Circuit Court of Australia (Federal Circuit Court) for the judicial review of the Tribunal’s decision.
In accordance with the usual practice of the Federal Circuit Court in dealing with applications for judicial review from the Tribunal, directions were made by that court for the filing in advance of written submissions in respect to the merits of the judicial review application. An order was also made appointing the present first applicant as litigation representative for the child. The applicants chose not to file written submissions, although the Minister did file such submissions. The case was listed for hearing before the Federal Circuit Court on 29 April 2019. When the case was called on for hearing that day, the applicants did not appear either in person or via a lawyer. The Minister appeared by his solicitor.
It would have been possible for the Federal Circuit Court to have dismissed the judicial review application on the basis of a failure on the part of the applicants to appear. Had that court taken that course, that would have enabled the applicants for cause to seek to have their application reinstated. As it happens, the applicants had an explanation for why it was that they had not appeared on 29 April 2019. That explanation has been provided by an affidavit made by the first applicant and filed in this court. In short, the third applicant, the child, was, as at 29 April 2019, ill, such that neither of his parents were able to attend court that day.
The Federal Circuit Court chose not to deal with the case on the basis of a default in appearance, but instead chose to consider the grounds in the judicial review application on the merits. In the result, that court dismissed with costs the applicants’ judicial review application: see EQG18 v Minister for Home Affairs & Anor [2019] FCCA 1646. The applicants did not file a notice of appeal within the time prescribed by the Federal Court Rules 2011 (Cth). The application today is therefore for an extension of time within which to appeal against the Federal Circuit Court’s order of dismissal.
In respect of any such application, three considerations are always relevant:
(1)Is there an adequate explanation for the delay?
(2)Is there any prejudice to a respondent?
(3)Are the proposed grounds of appeal of sufficient merit to warrant the granting of an extension of time?
The first and third of these considerations, and sometimes also the second, interplay. By that, I mean that even if there were an inadequate explanation for delay, the interests of justice might nonetheless require the granting of an extension of time if there were an obviously meritorious ground of appeal proposed.
The first applicant made submissions with the second’s applicant permission, not only on his own behalf, but also on behalf of the second and third applicants. He was also today, by order, appointed litigation representative for the third applicant, a role to which he readily consented. In his submissions, the first applicant made reference to further documentation and to events having occurred after 2014. These were not mentioned in any affidavit filed in Court, but, for the purposes of the present application, I assume that there are such documents and that there have been subsequent events which may be of relevance in relation to a visa application.
The difficulty for the applicants is that any such documents or events are not presently relevant, because this Court has no power to grant any of the applicants any visa. That is for the Tribunal. Success in respect of any appeal consequential upon the granting of an extension of time would give the applicants a chance, again, to have the merits of the protection visa application considered by the Tribunal. On any such reconsideration, the Tribunal might receive from the applicants any such documents or an account of later events, but that will only occur in the event that an extension of time is warranted and any consequential appeal succeeds.
As the Minister correctly identified in his submissions, the principal issue today is whether there is any prospective ground of appeal which has a sufficient prospect of success to warrant the granting of an extension of time. All that the applicants identified in the extension of time application was a reason why they had not attended the Federal Circuit Court on 29 April 2019. What was not identified was any legal error made by the learned primary judge in dismissing, on the merits, their judicial review application. I drew this to the attention of the first applicant and granted him a short adjournment within which to reflect upon whether there was any such error he wished to draw to my attention.
Upon resuming, the first applicant made a submission the effect of which was that the Tribunal should have accepted the claim which he and his wife had made for a visa. Regard to the reasons for judgment of the learned primary judge discloses that his Honour proceeded on the basis that the Tribunal had made credibility findings concerning the accounts given by the first and second applicants which were reasonably open to the Tribunal: see, in particular, [11] – [18] of the reasons for judgment of the Federal Circuit Court. The Tribunal had found, as his Honour identified at [29] of his reasons for judgment, not only inconsistencies which led to an absence of satisfaction as to credibility, but also on the material before the Tribunal an absence of credible reports of serious harm to Kadva patels for marrying outside their samajs.
This is just one of those cases where the Federal Circuit Court has correctly concluded that the Tribunal made no jurisdictional error in failing to be satisfied as to the basis of a claim for a protection visa. Insofar as the Tribunal’s absence of satisfaction was based on a credibility finding, that does not mean that the finding is immune from challenge on judicial review, but it must be attended with a jurisdictional error. In this case, the inconsistencies highlighted by the Tribunal’s reasons reasonably admitted all credibility findings adverse to the applicants.
The applicants have not given any explanation, either by affidavit or otherwise, as to why the notice of appeal was not filed within time. However, I am only too well aware of the difficulties that can attend persons whose first native language is not English in having to come to grips with the courts’ procedural requirements. So whilst those requirements are not aspirational statements, in a case such as this, where the departure from the prescribed time is very short, the prospective merits of a proposed appeal loom very large indeed as the determinative consideration. That is because the only prejudice which might fall on the Minister is having to meet and thereby incur the expense of meeting an appeal, and if a prospective appeal had sufficient merit to warrant an extension, that is an expense which the interests of justice would require the Minister to incur.
The real difficulty for the applicants is that, however one approaches this application, there is just no merit warranting an extension of time with respect to any ground of appeal, even assuming that one had been identified.
The consequence, necessarily, is that the application for an extension of time must be dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 4 December 2019
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