SZUAC v Minister for Immigration and Border Protection
[2015] FCA 213
•17 February 2015
FEDERAL COURT OF AUSTRALIA
SZUAC v Minister for Immigration and Border Protection [2015] FCA 213
Citation: SZUAC v Minister for Immigration and Border Protection [2015] FCA 213 Appeal from: Application for Extension of Time and Leave to Appeal: SZUAC v Minister for Immigration & Anor [2014] FCCA 2163 Parties: SZUAC v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1050 of 2014 Judge: LOGAN J Date of judgment: 17 February 2015 Catchwords: MIGRATION – application for extension of time and related leave to appeal from decision of the Federal Circuit Court of Australia affirming the decision of the Refugee Review Tribunal refusing to grant the applicant a protection visa – explanation for delay – merits of appeal – whether Federal Circuit Court displayed bias against applicant – whether Federal Circuit Court failed to identify unreasonableness in Tribunal’s reasons
Held: close engagement by Tribunal with integers of the protection visa claim – no bias on failure by Federal Circuit Court to find patent jurisdictional error by the Tribunal – application dismissed
Legislation: Federal Court of Australia Act 1976 (Cth) ss 21A, 426A
Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth) r 35.13
Federal Circuit Court Rules 2001 (Cth) r 44.11, r 44.12Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied
Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) [2011] 194 FCR 250 consideredDate of hearing: 17 February 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 29 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the Respondents: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1050 of 2014
BETWEEN: SZUAC
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
17 FEBRUARY 2015
WHERE MADE:
SYDNEY
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, which are fixed in the amount of $2,500.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1050 of 2014
BETWEEN: SZUAC
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE:
17 FEBRUARY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant is a citizen of the People’s Republic of China. He first came to Australia on 16 September 2006 on a Student (Schools Sector) subclass 571 visa. He has since then held other student visas, the last of which expired on 28 December 2012. Over that time, he studied for two years at a college in Australia, a further year at another Australian educational institute and then for two years at an Australian university.
After the expiry of the last of his student visas, the applicant remained in Australia without a further visa until 18 April 2013. On that date, and while he was still in Australia, he was granted a Bridging E visa. On 26 April 2013, the applicant applied to the Minister for Immigration & Citizenship, now known as the Minister for Immigration and Border Protection (Minister), under the Migration Act 1958 (Cth) (Migration Act) for that class of visa known as a protection (class XA) visa. On 8 November 2013 a delegate of the Minister refused to grant him a protection visa.
The following month, on 6 September 2013, the applicant, as he was entitled to do under the Migration Act, applied to the Refugee Review Tribunal (Tribunal) for the review of the Minister’s delegate’s decision. In relation to that review application, the applicant was represented by a migration agent. On 13 January 2014, the Tribunal wrote to the applicant advising that, having considered all of the material before it relating to his application, it was unable on the basis of that material alone to make a favourable decision.
As a consequence, and by that letter, the Tribunal invited the applicant to attend at a hearing on 13 February 2014 and to give oral evidence and present submissions relating to his claim for a protection visa. That invitation also specified that, if he decided not to attend the hearing, the Tribunal might make a decision in respect of his review application without further notice to him. On 21 January 2014, the applicant advised the Tribunal in writing that he did not wish to give oral evidence. Notwithstanding this, but hardly to the Tribunal’s discredit in terms of fairness, the Tribunal contacted the applicant’s migration agent so as to seek confirmation that the applicant did not wish to attend the hearing schedule for 13 February 2014. The applicant’s agent told the Tribunal that she had received advice from him the very day before that he did wish to attend the hearing and that the agent would send in a written advice to that effect. In the result, nothing further was received either from that migration agent or from the applicant by the Tribunal. Further, on 13 February 2014, the applicant did not, in fact, attend the scheduled hearing, nor did he make contact with the Tribunal to explain his failure to attend.
The Tribunal then proceeded to determine the review application. The Tribunal decided to affirm the decision by the Minister’s delegate not to grant the applicant a protection visa. The applicant then sought the juridical review by the Federal Circuit Court of Australia (Federal Circuit Court) of the Tribunal’s decision. That application was set down by the Federal Circuit Court for what is termed a “show-cause hearing”, pursuant to r 44.11(b) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). At such a hearing the Federal Circuit Court may materially, by r 44.12(1)(a) of the Federal Circuit Court Rules, if it is not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application.
The applicant, though he was given an opportunity so to do in advance of the show-cause hearing, did not file any written submissions with the Federal Circuit Court. Neither, upon the hearing of the show-cause application on 29 April 2014, did the applicant take up an opportunity extended by the Federal Circuit Court to make oral submissions in respect of the show cause hearing. On 16 September 2014, the Federal Circuit Court decided to dismiss the judicial review application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules with costs as fixed by that Court.
Although the Federal Circuit Court’s order was one of dismissal, it was, nonetheless, an order which was interlocutory in character. That meant, as a result of the operation of s 24(1A) of the Federal Court of Australia Act (Cth), that the applicant required a grant of leave to appeal. Any such application was required to be filed within 14 days of the judgment the subject of the leave to appeal application, see r 35.13 of the Federal Court Rules 2011 (Cth).
As it happened, the application was not filed within that time. The Court has a discretion to extend the time for the filing of an application for leave to appeal. The extension application is usually, as was the case today, heard in conjunction with the related application for leave if extension be granted.
The principles concerned are discussed in the Full Court’s judgment in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399. The Court is given a broad discretion as to whether or not to grant an extension and leave to appeal. In essence, the granting of an extension requires that there be an acceptable explanation for the delay and also a consideration of whether there is a reasonably arguable case in respect of the proposed appeal. Also relevant is whether substantial injustice would result if a grant of leave and related extension were refused.
The applicant did not, as ordinarily ought to occur, file an affidavit attesting to the factual basis of the explanation given for the failure to comply with the prima facie time prescribed for the filing of an application for leave to appeal and related extension of time. In his application, he gave the following as the grounds for his delay:
1.Reaspm [Reason] for judgement letter was [not] received until the 28th September 2014, and 28 days was assumed by me as the timeframe to appeal to Federal Court.
2.My supporting documents for exemption of Court fees were not gathered well.
[sic]
Notwithstanding the absence of an affidavit, but, very fairly, in the circumstances, the Minister did not contest the factual assertions specified in the application as the reasons for the failure to comply with the prescribed time limit. Thus, the hearing of the application proceeded on the basis that those asserted facts were indeed true. They were hardly lacking in credibility in the sense that it is quite readily understandable how a person in the applicant’s situation of being both untrained in law, as well as not fluent in English, might come to miss the technical distinction between a final and an interlocutory judgment and the related difference in time limits for a challenge.
That is not to say that in each and every case litigants in person should be given special treatment, only that, in the applicant’s particular circumstances, were there to be a reasonable basis for a challenge or other apparent injustice, the explanation which he has given would be quite sufficient to warrant an extension of time.
The real question in this case is whether there is evident injustice and, in particular, whether there is a reasonable basis of challenge, having regard to the grounds of appeal in the draft notice of appeal.
Those grounds are stated in this way:
1. Bias of the Honour, Judge of Federal Magistrate Court against the Applicant.
2.Error of the Honour, Judge of Federal Magistrate Court, in failing to hear the evidence given by the applicant.
3.Error of the Honour, Judge of Federal Magistrate Court, in failing to identify the jurisdictional error made by the Second Respondent.
[sic]
The applicant did not file written submissions in respect of the application for an extension of time and leave to appeal. He did not develop proposed ground of appeal 1 in his oral submissions. This aside, there is no evidenced basis upon which it is reasonably arguable that the learned Federal Circuit Court judge was either actually biased or at least that there is an evident appearance of bias. It is for a person alleging bias to point to evidence of the same. Here, the only possible evidentiary foundation is in the reasons for judgment of the Federal Circuit Court judge and, in the procedural history of the case before that, the Federal Circuit Court.
As to the procedural history, that evidences not bias or an appearance even of bias but rather the reverse. By that I mean, that the procedural history demonstrates that there was an opportunity in advance extended to each party, but particularly materially the applicant, to make submissions in writing in respect of the merits of the show-cause application. It further demonstrates that each party was afforded an opportunity at the hearing of the show-cause application to make oral submissions as to the merits. That the applicant chose not to take advantage of either such opportunity does not evidence bias on the part of the learned Federal Circuit Court judge or the appearance of bias.
His Honour’s reasons for judgment provide no alternative foundation for a reasonably arguable case of either bias or an apprehension of bias. Rather, they demonstrate, on their face, a dispassionate, thorough consideration of the merits of the judicial review application and a conclusion, flowing from that consideration, that the case was one for summary dismissal. Proposed appeal ground 1 is not, therefore, a basis upon which to grant leave to appeal or any related extension of time.
The second of the proposed grounds of appeal is wanting in particularity.
In oral submissions today the applicant asserted that there had been a lack of a faithful translation of the Federal Circuit Court proceedings. The difficulty about that particular submission is that there is no evidence whatsoever of any such translation failure. It would be for the applicant to provide that evidence. This aside, and insofar as there might be some other question as to evidence upon which the Federal Circuit Court acted or failed to hear, it is evident that the Federal Circuit Court was aware of and acted on the basis of the applicant’s asserted reason for his failure to attend the Tribunal hearing offered to him. That basis was that he had found himself, as a result of having to pay his rent and being unable to borrow funds, unable through lack of means to attend the hearing on 13 February 2014 as offered by the Tribunal.
The reasons for judgment of the Federal Circuit Court reveal that that court dealt with the show-cause application on the basis that that was a reason for the failure to attend the hearing offered by the Tribunal. What those reasons for judgment further reveal is that the Federal Circuit Court judge examined the procedural steps specified by the Migration Act for the Tribunal to follow if it reached a view that it could not decide a review application in a manner favourable to an applicant on the basis of the material before it. The Federal Circuit Court concluded, correctly in my view, that those procedural requirements had been observed by the Tribunal and that the Tribunal was entitled to proceed to determine the review application without further hearing from the applicant pursuant to s 426A of the Migration Act. I see no reasonably arguable case revealed by proposed appeal ground 2.
As to the third of the proposed appeal grounds, the applicant did not, in the draft notice of appeal, specify the jurisdictional error which the Federal Circuit Court was said to have failed to identify. In the course of endeavouring to understand the basis of this ground in the applicant’s oral submissions, it became evident that, at the heart of the complaint, lay a feeling on his part that the Tribunal ought to have accepted his protection visa claim as made and had acted unreasonably by not doing that and that, in turn, the Federal Circuit Court ought to have found such an error.
It may very well be that it was this particular complaint that lay behind the grounds of review pleaded in the judicial review application to the Federal Circuit Court by the applicant. Those grounds were these:
1.DIAC [presumably the Minister’s department] and RRT have descriminatio [discrimination against] on me, failed to consider my real situation.
2.DIAC and DIAC are unfair to me.
[sic]
The Tribunal’s reasons in this case disclose a close engagement by the Tribunal with the basis of the applicant’s claim for a protection visa. That basis was his professed adherence to the Christian faith and a fear on his part of persecution on the basis of that religious belief were he to be returned to the People’s Republic of China. Neither the Minister nor his delegates nor, upon review, the Tribunal are obliged to accept uncritically the factual basis asserted in a protection visa application. The Tribunal identified in its reasons particular questions which it had wished to pose to the applicant at the hearing. These questions do not leave me with the impression that the Tribunal proposed to conduct an interrogation of the applicant in matters of advanced Christian theology to the end of demonstrating, in a manner which few would be able to answer without a degree in Divinity that he was not a true adherent.
Further, apparently on the basis of country information, the Tribunal wished to ask the applicant questions concerning why it was that he could not or had not attended a registered Christian church in China. In other words, it does look as if the Tribunal did have quite understandable interrogative notes upon which it had not reached a conclusion favourable to the applicant, just on the basis of the assertions in the claim as made. It was for the applicant as best he could to support his claim for a protection visa including, in so doing, taking advantage of the opportunity offered by the Tribunal to attend and give evidence and make submissions at a hearing.
Also evident from the Tribunal’s reasons is that the Tribunal did understand and engage with the detail or “integers” of the protection visa claim made by the applicant. There was not then, in my view, a patent jurisdictional error either on the basis of unreasonableness or perhaps a failure to take into account a relevant consideration namely, the claim for protection visa as made, evident in the reasons of the Tribunal. Instead, those reasons disclose a reasonable basis upon which a Tribunal charged with deciding that as a fact might choose not to accept a claim as made.
In turn, then, there was no patent jurisdictional error which the Federal Circuit Court ought to have found, either having regard to the grounds of review fairly read or even exceptionally, notwithstanding those grounds, on the very face of the Tribunal’s reasons. It follows that there is no reasonable basis, in my view, for the third of the proposed grounds of appeal. What in turn follows is that, even though there is an explanation which one might regard as acceptable for why the applicant did not file his application for leave to appeal within time, the granting of an extension would be futile, because there is neither a reasonable basis or challenge revealed in the proposed grounds of appeal, nor, if it be any different, any substantial injustice in the result in the Federal Circuit Court. It follows, then, that the application must be dismissed.
The Minister has sought an order for costs and, further, that the court fix those costs. The applicant does not contest that costs should follow the event, nor does he submit that the case is not one where the court should itself fix the costs. The question is, therefore, whether costs should be fixed in the amount sought by the Minister. That is because there is no question that costs ought to follow the event. Further, the case is one of a nature where it is apt, in my view, both for reasons of efficiency and fairness and saving of costs to both the applicant and the Minister to fix costs. The amount sought by the Minister is that costs be fixed in the sum of $2,500 or such lesser sum as the court might deem fit.
In support of that, the Minister relies upon an affidavit of his solicitor, which deposes to the costing method utilised by that firm. That reveals that that firm uses a computer-based time billing and recording system. Time costing can be conducive to the rewarding of inefficiency for reasons that I set out in length in Wide Bay Burnett Conservation Council Inc v Burnett Water Pty Ltd (No 9) (2011) 194 FCR 250. Even so, it is a method recognised under the rules.
The evidence is, and I accept it, that, upon a taxation of costs in this matter, it is likely that between 65% and 75% of the professional costs in a bill of costs cast by reference to time costing would be allowed by a registrar. It is said that that would yield a recovery on the part of the Minister of costs within a range of between $2,700 and $3,200 in this case. The sum sought by the Minister is less than this. It does not strike me as inherently unreasonable, having regard to the necessary work entailed both prior to the hearing of this application and at the hearing. A robust approach is apt in relation to the court’s fixing of costs. My own experience of matters of this kind tells me that the sum sought by the Minister is not unreasonable, having regard to the work entailed and to costs amounts specified in the Third Schedule to the Court’s rules.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 19 March 2015
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