SZUHB v Minister for Immigration and Border Protection

[2017] FCA 1516

FEDERAL COURT OF AUSTRALIA

SZUHB v Minister for Immigration and Border Protection [2017] FCA 1516

File number(s):	NSD 1552 of 2016
Judge(s):	GREENWOOD J
Date of judgment:	12 December 2017
Catchwords:	MIGRATION – consideration of an application for an extension of time and for leave to appeal from a decision of the Federal Circuit Court of Australia dismissing an application to reinstate an application for judicial review dismissed by the Federal Circuit Court of Australia
Legislation:	Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa)
Cases cited:	SZUHB v Minister for Immigration & Anor [2016] FCCA 2258
Date of hearing:	17 February 2017
Date of last submissions:	17 February 2017
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	33
Counsel for the Applicant:	The applicant appeared in person
Counsel for the First Respondent:	Clayton Utz Lawyers

ORDERS

NSD 1552 of 2016

BETWEEN:

SZUHB

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	12 DECEMBER 2017

THE COURT ORDERS THAT:

1.The application for an extension of time and leave to appeal filed by the applicant on 15 September 2016 is dismissed.

2.The applicant pay the costs of the first respondent of and incidental to the application to be taxed or as agreed. 

3.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GREENWOOD J:

1. These proceedings are concerned with an application for extension of time and for leave to appeal from the judgment and orders of the Federal Circuit Court of Australia (the “Federal Circuit Court”) given on 16 August 2016 at Sydney.  The judgment the subject of the application is as follows:  SZUHB v Minister for Immigration & Anor [2016] FCCA 2258.

2. The background to the application is this. 

3. The decision of the Federal Circuit Court was made and given in an application for reinstatement of a judicial review application made to the Federal Circuit Court.  On 26 March 2014, the Refugee Review Tribunal (the “Tribunal”; although, of course, the relevant body now is the Migration Division of the Administrative Appeals Tribunal) affirmed a decision of the Minister’s delegate not to grant a protection visa under the provisions of the Migration Act 1958 (Cth) (the “Act”) to the applicant. The delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) of the Act. Nor was the delegate satisfied that substantial grounds subsisted for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the relevant receiving country, there subsisted a real risk that he would suffer significant harm for the purposes of s 36(2)(aa) of the Act.

4. The applicant sought judicial review of the Tribunal’s decision.  The Federal Circuit Court dismissed the judicial review application on 20 June 2016.  The Federal Circuit Court did so because the applicant failed to appear at the hearing of the application. 

5. On 19 July 2016, the applicant filed an application for reinstatement of the judicial review application. 

6. On 16 August 2016, the Federal Circuit Court made an order dismissing the reinstatement application and ordered the applicant to pay the Minister’s costs of and incidental to the application fixed in an amount of $2,000. 

7. The applicant requires leave to appeal from the decision of the Federal Circuit Court because that decision was an interlocutory decision made pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth). That rule provides that the Federal Circuit Court may set aside its judgment or order once it has been entered, if made in the absence of a party. The applicant had invoked that rule and sought an order from the Federal Circuit Court setting aside the dismissal of the judicial review application on 20 June 2016.

8. Apart from the question of leave, the applicant also requires an extension of time to apply for leave to appeal because his application for leave was filed more than 14 days after the date of the Federal Circuit Court decision of 16 August 2016 dismissing the reinstatement application.  The lawyers for the first respondent have calculated the period of the delay as 16 days, which I accept.  The application was filed on 15 September 2016. 

9. The Minister opposes the application for an extension of time and the application for leave to appeal on the footing that the proposed appeal “does not have sufficient merit to warrant an extension of time or the grant of leave”. 

10. In the application for an extension of time and leave to appeal, the applicant sets out the grounds of the application and they are these:

    1.The Federal Circuit Court Judge erred by being reluctant or failing to identify that the Tribunal Member committed a jurisdictional error in its decision concluding that I am not a refugee.

    2.It is argued that the Tribunal Member’s findings are irrational and illogical toward my claims and evidence because the Member had relied on its [his] arbitrary views.

    3.The Tribunal member gave me no natural justice and procedural fairness.

11. As to these grounds, the contended event of jurisdictional error is not identified.  Apart from Ground 1, the applicant says, in substance, that the findings are irrational and illogical and thus, inferentially, the Tribunal has strayed outside the limits of the statutory review function.  The applicant also says that the Tribunal failed to provide him with natural justice or, as that term is now known, procedural fairness.  Again, the applicant must be taken to be saying that because the Tribunal failed to provide him with procedural fairness, it strayed outside the limits of the statutory review function.  In truth, all three grounds amount to a challenge to the Tribunal’s decision on the ground of jurisdictional error.  As to Grounds 2 and 3, the applicant must be taken to be saying that because the Federal Circuit Court failed to identify irrationality and illogicality in the decision‑making and because the Federal Circuit Court failed to find a lack of procedural fairness on the part of the Tribunal, the Federal Circuit Court fell into error. 

12. The application before this Court is supported by an affidavit of the applicant affirmed on 9 September 2016 in which these things are said:

    1.I am the applicant in these proceedings.

    2.I was unable to file the appeal within the deadline because I did not know the deadline.

    3.I relied on the deadline of 28 days from the judgment of the Federal Circuit Court.

    4.I require justice.

    5.His honour Judge Cameron expressed reluctances to find a jurisdictional error committed by the Tribunal Member.

    6.I am a real victim of the Tribunal Member’s purported decision. 

13. As to the grounds of appeal, the applicant restates Grounds 1, 2 and 3 set out at [10] of these reasons. 

14. The applicant is a male citizen of Nepal who arrived in Australia on 28 February 2009. On his arrival, he was the holder of a student dependent visa. On 13 February 2009, the applicant had been granted a Vocational Education Sector Student subclass TU‑572 (Dependent) visa under the Act. He was a dependent of his wife. His subclass TU‑572 visa expired on 3 August 2011. The applicant was granted a bridging visa under the Act which came into effect on 4 August 2011. On 21 February 2013 (see Court Book before the Federal Circuit Court of Australia at p 15), the applicant lodged an application for a Protection Visa (Class XA) with the Department which was then known as the Department of Immigration and Citizenship. The essential foundation for his contended fear of persecution in Nepal was his marriage to his cousin. The application for the Protection Visa was supported by a statement made by the applicant which appears to be dated 25 February 2013 (although that date may be an error because the application was actually dated 21 February 2013 and stamped as received on 21 February 2013). In any event, the statement is entitled: “My painful story – statement of my refugee claims”. In that statement (although it expands upon the relevant contextual events), the applicant says this:

    I [SZUHB], born on 28 April 1977, a citizen of Nepal would like to seek a protection visa in Australia because I am unable to return to Nepal due to fear of being jailed or murdered for my incestuous relationship with [X] who is my aunt’s daughter.  I [fell] in love with [X] and practiced having sex with her. 

15. The applicant then expands upon the relevant events which he believes has caused him to be fearful of persecution. 

16. Before this Court, the Minister observes that the judgment of the Federal Circuit Court adopted the Minister’s summaries of the statement and the oral evidence given before the Tribunal.  The Minister also observes, before this Court, that the applicant does not assert any error in the primary judge’s identification of his claims.  Since the summary of the basis for the claims is not in contest, I will simply quote below the paragraph from the Federal Circuit Court judgment which reflects those matters.  At [9], Judge Cameron made these observations:

    9.The applicant claimed to fear harm in Nepal because of his marriage to his cousin, his paternal aunt’s daughter. The applicant’s claims as set out in a statement attached to his protection visa application were summarised by the Minister in his written submissions as follows:

    (a)The applicant and his wife began their romantic relationship in secret but it was discovered by his wife’s friend. This friend told the applicant’s parents-in-law of the relationship. Following this, the applicant was beaten, “given physical and mental torture”, expelled from the community and threatened with death by his wife’s parents and relatives.

    (b)The applicant and his wife ... came to Australia after his parents-in-law agreed to support her study overseas. The applicant’s wife secretly included his name in the student visa application and in this way the applicant obtained a dependant student visa and entered Australia. When he arrived, the applicant intended to remain permanently in Australia.

    (c)The applicant’s married life in Australia did not go as planned. His parents-in-law asked his wife to return to marry a man of their choice, and declined to finance her education.

    (d)       The applicant told his brother about his relationship with his cousin.

    (e)The applicant claimed to be suffering “depression and substantial psychological distress”. He feared persecution if he were to return to Nepal because his incestuous relationship was not accepted or tolerated in Nepalese culture. He feared that he would be discriminated against, expelled, jailed or killed in Nepal. He feared this harm from his wife’s parents and relatives and from religious and conservative people.

    [original emphasis]

17. At [10], Judge Cameron also said this as to the applicant’s evidence at the Tribunal hearing held on 24 March 2014:

    10.The Minister also summarised in his written submissions the applicant’s evidence at a Tribunal hearing held on 24 March 2014 as follows:

    (a)       The applicant was married to his cousin in April 2008.

    (b)There were problems in the marriage from early 2012. Five or six months later the applicant’s wife moved to a different address. In mid-2013, the couple divorced after signing the necessary papers in November 2012

    (c)       In November 2012, the applicant’s wife returned to Nepal.

18. The Federal Circuit Court adopted the written submissions of the Minister setting out the Tribunal’s findings and reasons for its decision, in these terms:

    21.Before addressing the applicant’s substantive claims, the Tribunal observed that the applicant claimed to be suffering depression and psychological distress. The Tribunal was nonetheless satisfied that the applicant was able to give evidence and present arguments at the hearing. This was because the Tribunal observed nothing to indicate that the applicant had any difficulty in this regard and he did not bring to the Tribunal’s attention any medical issues.

    22.The Tribunal found that the applicant was an untruthful witness and that none of his claims or evidence could be relied upon as truthful. It found that the applicant had entered into a sham marriage for the purpose of securing entry into Australia. It expressly rejected each of the key elements of the applicant’s claims, save for the fact that he had formally entered into a marriage.

    23.The Tribunal detailed its concerns in relation to the genuineness of the applicant’s claimed relationship and marriage to his cousin at paragraph 18 of its reasons for decision. In summary, the Tribunal’s concerns included the following:

    (a)The applicant claimed that he had known his cousin since they were young. Asked about the history of this relationship, and the development of their romantic interest, the applicant’s evidence was vague and unconvincing. He did not appear to be recounting actual experiences.

    (b)The applicant’s evidence at the hearing in relation to violence or threats of violence from his parents-in-law was inconsistent in significant respects with his written claims.

    (c)The Tribunal invited the applicant to give details about his wife but he did not appear to be able to do so beyond basic information such as the fact that she had a sibling.

    (d)The applicant claimed that he was able to keep the relationship secret from his own parents. The Tribunal doubted, given his claims and evidence relating to his parents-in-law, that his parents-in-law would not have spoken to his own parents about the relationship.

    (e)The Tribunal invited the applicant to provide evidence that the couple lived together in Australia as husband and wife from February 2009. The applicant’s response was that he did not have any such evidence to give.

    (f)The applicant’s evidence about the development of the couple’s romantic relationship, especially as to its timing, was “extremely vague”. For example, the applicant’s evidence in relation to the trouble that the couple experienced and the timing of their separation and divorce was vague and confused and internally inconsistent.

    (g)The applicant claimed that his cousin was forced to return to Nepal after her parents ceased to support her financially. The Tribunal observed that this raised the question as to why his cousin would continue to rely on her parents financially if she lived with the applicant as her husband in Australia and the applicant had permission to work.

    [original emphasis]

19. As mentioned earlier, the applicant does not contest or call into question the accuracy of the summary adopted by the Federal Circuit Court as described at [18] of these reasons. 

20. In terms of the tests applied by the Federal Circuit Court in dealing with the reinstatement application, the Federal Circuit Court said this at [3] and [4] of its reasons:

    3.These reasons concern an application in a case filed by the applicant pursuant to r.16.05 of the [Federal Circuit Court Rules] seeking to set aside the orders made by this Court on 20 June 2016 on the basis that those orders were made in his absence. 

    4.In deciding whether to grant the present application, consideration must be given to whether the applicant’s explanation for his non‑attendance on 20 June 2016 is a satisfactory one and whether, nevertheless, he has reasonable prospects of success.  The Minister did not suggest that he would suffer any prejudice by reinstatement of the matter other than costs. 

    [emphasis added]

21. As to the reasonableness of the applicant’s explanation, the Federal Circuit Court said this at [5] and [6]:

    5.Turning first to whether the applicant has provided a satisfactory explanation for his non‑attendance, in his affidavit filed on 19 July 2016 in support of his application to set aside the orders made on 20 June 2016, the applicant deposed that he had forgotten the date because of depression.  He was not cross‑examined on this evidence and he repeated it from the bar table at the hearing of the present interlocutory application. 

    6.While it may be accepted that the applicant forgot, and even that he is depressed, although by that expression I do not mean to imply that I accept that the applicant suffers from a medically diagnosed depressive illness, those facts alone do not satisfactorily explain his absence from Court on 20 June 2016.  The applicant has not shown that his mental processes were disturbed such that he was prevented or distracted in some way from remembering the listed hearing date.  He has not proved anything more than forgetfulness and a low mood.  These things do not amount to a satisfactory explanation for not attending the previously listed hearing.  I therefore find that the applicant has not made out the first aspect of the matter which I must take into account. 

    [emphasis added]

22. As to the question of whether the applicant had demonstrated reasonable prospects of success before the Federal Circuit Court, that Court identified three grounds upon which the applicant sought to rely in demonstrating reasonable prospects of success.  Those three grounds were these:

    1.I am unhappy with the [Tribunal] Member’s decision in my case because I have been given no fairness and good faith in my claims. 

    2.My delay in lodging a protection visa application shouldn’t be an issue given the fact that I told the truth.

    3.I argue that my credibility is not an issue but the Tribunal Member’s purported view in my claims is an issue in my case. 

23. In dealing with those three claims the Federal Circuit Court said this at [15], [16] and [17] of the judgment:

    Grounds 1 and 2

    15.Although I hesitate to quote a further portion of the Minister’s written submissions, I find that his submissions in relation to the first two grounds of the application are pithy and well expressed and I agree with them. They were:

    28.Ground 1 alleges unfairness and a lack of good faith but does not identify how this is said to arise. No unfairness is apparent from a review of the documents in the Court Book. The applicant’s claims were evidently considered by the Tribunal, and the applicant was given the opportunity to give evidence and present arguments in relation to those claims at a hearing. The applicant did not take up the opportunity given to him to file particulars of this ground or to serve evidence of unfairness of a lack of good faith. The ground does not of itself give rise to an arguable case for the relief claimed.

    29.Ground 2 misconstrues the manner of the Tribunal’s reasoning because it assumes the credibility of the applicant’s claims in order to impugn the Tribunal’s reasoning in relation to the delay in applying for a protection visa. In fact, the delay in applying reinforced the Tribunal’s adverse findings as to credibility. It was open to the Tribunal to reason in this way. This ground does not give rise to an arguable case for the relief claimed.

    Ground 3

    16.In his written submissions, the Minister correctly submitted that the third ground of the application did not contain an allegation of jurisdictional error and thus did not give rise to an arguable case for the relief claimed. However, it should also be stated that the applicant appeared, from that allegation, to believe error to be disclosed by the fact that the Tribunal based its decision on a credibility finding. That is not correct. Questions of credit are, as McHugh J said in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, matters for the Tribunal “par excellence”.

    Submissions at hearing

    17.At the hearing of this application, the applicant submitted that the Tribunal did not consider his case properly. The applicant did not identify any aspect of his case which was not considered and so this must be seen to be no more than a complaint about the Tribunal not making a finding in his favour. That is to say, he invited the Court to consider whether, on the evidence, the Tribunal’s decision was the preferable one. For reasons already explained, the Court cannot do that.

1. For the reasons identified at [15], [16] and [17] of the judgment, the primary judge found that the substantive application for judicial review would have no reasonable prospects of success were the orders made on 20 June 2016 to be set aside. 

2. In the result, the application of 19 July 2016 to reinstate the judicial review application, dismissed on 20 June 2016, was dismissed. 

3. As to the application before this Court, the application for an extension of time and an application for leave to appeal each require consideration of the merits of the proposed appeal.  Fundamentally, leave to appeal from the decision under challenge will not be granted unless the decision is attended by sufficient doubt so as to warrant the grant of leave.  The Minister contends that the proposed appeal has no merit.  The Minister contends that there is no basis upon which the primary judge’s exercise of discretion not to set aside the orders dismissing the judicial review application can properly be criticised.  The Minister also says that the extension of time should be refused on the basis that even if the delay in filing is excused, there is nevertheless no point in granting an extension of time because there is no merit in the proposed appeal and ultimately any appeal would be dismissed. 

4. The question then is why does it follow that there is no merit in the contended grounds of appeal which the applicant seeks to agitate? The grounds of appeal are, as mentioned, set out at [10] of these reasons as explained at [11].

5. As to Ground 1, the applicant contends that the Federal Circuit Court erred by “being reluctant” or by “failing” to identify that the Tribunal fell into jurisdictional error in “concluding” (that is, by not being satisfied) that the applicant is a refugee in the sense contemplated by s 36(2)(a) or s 36(2)(aa). As mentioned earlier, there is no contention of the basis upon which jurisdictional error is said to arise or the basis upon which the Federal Circuit Court is said to have fallen into error in not finding, or in being reluctant to find, jurisdictional error.  The primary judge examined the grounds of challenge relied upon by the applicant before the Federal Circuit Court and examined the contextual background by which the Tribunal reached its decision.  Leaving aside the notion that the applicant has not identified any particular expression of the so‑called jurisdictional error, an analysis of the Tribunal’s reasons does not reveal a basis for jurisdictional error or reveal a basis upon which it could be said that the Federal Circuit Court, in reading and reviewing the reasons of the Tribunal, failed to identify a ground of jurisdictional error.  This Court has reviewed the Tribunal’s reasons for itself and can find no basis upon which it can be said that the Tribunal failed to perceive a ground of jurisdictional error notwithstanding that neither the Federal Circuit Court nor this Court has been aided by any content to the allegation. 

6. Ground 2 of the grounds advanced before this Court contend that the Tribunal reached findings which are “irrational” and “illogical” and that is said to follow because the Tribunal Member relied upon his own “arbitrary views”.  Of course, if the Tribunal undertook a process of reasoning which could be properly characterised as irrational and illogical and if the reasoning reflected true arbitrariness of decision‑making in the sense that the Tribunal Member had disregarded any proper process of weighing the evidence, that method of decision‑making would take the review function outside the statutory limits of the review function and amount to jurisdictional error.  It would, of course, be helpful for the applicant to identify the sequence of reasoning which is said to be the expression of irrationality or illogicality.  It would also be helpful for the applicant to identify the features of the reasoning which suggest arbitrariness.  None of that has occurred.  There is, however, another aspect of the matter.  The Minister says that these grounds of irrationality, illogicality and arbitrariness in the Tribunal’s decision‑making were not raised in the application for judicial review before the Federal Circuit Court and leave would be required to raise them as fresh grounds on appeal. 

7. The Court might be minded to grant leave to rely upon these grounds even though they are raised as fresh matters and even though there is no content to the grounds alleged, if an examination of the reasons formulated by the Tribunal suggested, even arguably, that issues arise on the face of the reasons of illogicality, irrationality and/or arbitrariness.  However, an examination of the reasons does not suggest any such grounds arise.  The contentions are simply bare allegations.  Even that would not matter if the Court could be satisfied, for itself, that there was some basis for the contention.  However, there is not.  There is no substance to Ground 2. 

8. Ground 3 contains a contention that the Tribunal Member failed to provide the applicant with procedural fairness in and incidental to the conduct of the statutory review function.  Again, there is no content or expression of the factors which are said to amount to a denial of procedural fairness.  Ultimately, an applicant has to make at least a passing attempt to demonstrate the way in which the Tribunal failed to provide procedural fairness.  I have already quoted at [23] the way in which the primary judge dealt with essentially the same contention at [15] of the primary judge’s reasons.  The primary judge observed that no unfairness is apparent from a review of the documents in the Court Book.  The primary judge observed that the claims identified by the applicant were considered by the Tribunal and the applicant was given an opportunity to give evidence by documents and orally and present arguments in relation to the claims at a hearing.  No content was given of the contended ground of unfairness. 

9. Before this Court, no content is given to the ground.  This Court has reviewed the Court Book for itself and can find no basis to support the contention.  Accordingly, there is no basis for concluding that the primary judge’s decision is attended by sufficient doubt so as to warrant the grant of leave. 

10. Accordingly, the application for an extension of time and for leave to appeal is to be dismissed.  The Minister seeks an order for costs fixed in a particular amount.  However, I propose to order that the applicant pay the Minister’s costs of and incidental to the application without fixing the amount of the costs. 

I certify that the preceding thirty‑three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        12 December 2017