SZVSQ v Minister for Immigration and Border Protection
[2017] FCA 1387
•24 November 2017
FEDERAL COURT OF AUSTRALIA
SZVSQ v Minister for Immigration and Border Protection [2017] FCA 1387
Appeal from: Application for extension of time: SZVSQ v Minister for Immigration and Border Protection [2017] FCCA 1286 File number: NSD 853 of 2017 Judge: MARKOVIC J Date of judgment: 24 November 2017 Catchwords: MIGRATION – application for extension of time within which to seek leave to appeal – where draft notice of appeal does not disclose an arguable case of error – whether to grant extension of time and leave to appeal – application dismissed Legislation: Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth) r 35.13
Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
Date of hearing: 24 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Mr C Robertson, DLA Piper Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
NSD 853 of 2017 BETWEEN: SZVSQ
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
24 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal filed on 1 June 2017 be dismissed.
2.The applicant pay the first respondent’s costs of the application for extension of time and leave to appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)MARKOVIC J:
By application filed on 1 June 2017 the applicant seeks an extension of time within which to seek leave to appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 3 May 2017. Those orders dismissed the applicant’s application pursuant to s 476 of the Migration Act 1958 (Cth) (Act) seeking review of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).
The order dismissing the applicant’s application was made pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth): see SZVSQ v Minister for Immigration & Anor [2017] FCCA 1286. The applicant requires leave to appeal from it: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicant also seeks an order that compliance with r 35.13 of the Federal Court Rules 2011 (Cth) (Rules) be dispensed with.
BACKGROUND
The applicant is a citizen of Indonesia. He arrived in Australia on 15 March 2010 as the holder of a visitor visa. On 14 August 2013 the applicant applied for a Protection (Class XA) visa (Visa). In summary, the applicant claimed to fear harm if he returned to Indonesia because he is Chinese; Christian; will be unable to get a job; and has a sick Australian wife who will be unable to get the treatment she needs in Indonesia.
On 6 February 2014 a delegate of the first respondent (Minister) refused to grant the applicant the Visa. The applicant applied to the Tribunal for review of the delegate’s decision. On 15 October 2014 he appeared before the Tribunal to give evidence and present arguments. He was assisted at the hearing by an interpreter in the Indonesian and English languages. On 27 October 2014 the Tribunal affirmed the decision not to grant the applicant the Visa.
At the hearing before the Tribunal the applicant informed the Tribunal that he was not relying on his claim of being married to a sick Australian. The Tribunal accepted that the applicant was a Christian. It also accepted that there had been violence against Chinese in Indonesia in 1965 and 1998. However, the Tribunal did not accept that the applicant had suffered serious or significant harm in Indonesia because he is a Christian, of Chinese ethnicity or for both of those reasons since 1965, nor that he will do so if he returns to Indonesia.
The Tribunal noted that the only significant or serious incident to which the applicant referred was the taking by the military of his father’s business in 1965, which it accepted occurred because the applicant’s family was Chinese. However, the Tribunal noted that that was nearly 50 years ago and that Surabaya, which is where the applicant lived in Indonesia, was not, according to the applicant, affected by the 1998 anti-Chinese riots because of steps taken by wealthy Chinese in that city to pay the military for protection.
The Tribunal found that the applicant’s claims that he would be unable to get a job if he returned to Indonesia were exaggerated and it did not accept that he would be unable to get a job because of his age, lack of education, ethnicity or any combination of those reasons.
The Tribunal concluded that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act and that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
THE FEDERAL CIRCUIT COURT PROCEEDING
The applicant sought review of the Tribunal’s decision in the Federal Circuit Court.
On 3 May 2017 the applicant’s application was listed for a show cause hearing in that court. The applicant raised two grounds of review which were, as written:
1.The Refugee Review Tribunal wrongly affirmed the decision.
2.The Tribunal is aware that if I go back to Indonesia I will not be able to work. I will suffer serious harm, as not able to support myself. The Tribunal made a serious mistake by denying me protection visa.
The Federal Circuit Court dismissed the applicant’s application. The primary judge:
(1)noted that the grounds of the application took issue with the Tribunal’s finding in respect of his claim that he would not be able to work in Indonesia. The primary judge held that the finding made by the Tribunal and the antecedent findings that informed it were, on the evidence, all reasonably open to the Tribunal;
(2)found that the Tribunal gave cogent reasons as to why the requisite level of satisfaction could not be reached, such that the Visa should not be granted to the applicant;
(3)accepted the Minister’s submission that the grounds sought impermissible merits review and that they did not raise an arguable case;
(4)noted that the applicant was invited to a hearing pursuant to s 425 of the Act and that, on the evidence before the court, the invitation complied with all of the relevant statutory and regulatory requirements. The primary judge observed that the hearing was a meaningful opportunity for the applicant to give his evidence and arguments in relation to the issues in the review;
(5)found that the evidence before the Tribunal was not caught by s 424A(1) of the Act by reason of the exception in s 424A(3); and
(6)found that the Tribunal dealt with all of the applicant’s claims; that the applicant was given the opportunity to explain his claims and to give his evidence; and that any complaint about the Tribunal’s inability to reach the requisite level of satisfaction as mandated by s 65 of the Act could not be said to raise any legally arguable case.
THE APPLICATION FOR AN EXTENSION OF TIME AND LEAVE TO APPEAL
The applicant’s application for an extension of time and leave to appeal includes the following grounds:
1. When I appeared before his Honour Judge Nicholls I did not receive a judgment. I recently received an Order from the Federal Court by Express Post dated 3 May 2017.
2. I will provide grounds of application when I receive the judgment.
The application is accompanied by an affidavit affirmed by the applicant on 31 May 2017. In his affidavit the applicant says that he appeared before the primary judge and has not yet received a judgment; that he received an express post item on 23 May 2017 enclosing an order from the Federal Circuit Court dated 3 May 2017; and that he “ask[s] the Honourable Court to accept [his] application for extension of time and leave to appeal as well as Draft Notice of Appeal, and [he] hope[s] that the Honourable Court accepts [his] explanation as to the delay in submitting this application to the Federal Court of Australia”.
The affidavit annexes a draft notice of appeal which identifies two proposed grounds of appeal. They are, as written:
1. His Honour Judge Nicholls has not given me a judgement yet. On 23 May 2017 I received an Order from the Federal Circuit Court dated 3 May 2017.
2. I do not agree with the Order made by His Honour Judge Nicholls and I am waiting for the judgment to provide more details as to the grounds of appeal.
Pursuant to r 35.13 of the Rules the applicant was required to file his application for leave to appeal within 14 days after the date on which the orders were made by the Federal Circuit Court. That is, he was required to file the application for leave to appeal by 17 May 2017. The application was filed on 1 June 2017 and thus the applicant requires an extension of time of 15 days within which to seek leave to appeal.
The principles relevant to the exercise of discretion to grant an extension of time and to grant leave to appeal are well established.
In relation to an extension of time the Court will usually consider the length of the delay; whether the delay has been adequately explained; whether there could be any prejudice to the respondent in defending the proceeding caused by the delay, although the mere absence of prejudice to a respondent is not enough to justify the grant of an extension; and the merits of the substantive appeal if leave were granted: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (per Wilcox J).
As concerns the last of these considerations, the proposed appeal grounds should be considered at a reasonably impressionistic level. The Court should not descend into a fuller consideration of the arguments for and against each ground: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J and, on appeal, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38].
In relation to leave to appeal an applicant must show that, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant its reconsideration by a Full Court and that substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.
The applicant has not provided any written submissions in support of his application. Today, when invited to make submissions, he informed the Court of the following matters:
·the applicant said that he wanted to say something about the extension of time. He submitted that he did not receive the letter from the primary judge. He noted that the Minister’s solicitors said that they were not satisfied. I assume that the applicant was referring to the Minister’s lack of satisfaction with the explanation offered by the applicant for the delay in filing his application for leave to appeal. The applicant further submitted that the interpreter did not say anything to him about the time in which he could appeal. He said that he would like the Court to agree with him;
·the applicant submitted that it was a big risk for him to return to Indonesia. He said that he had lived here for a long time and is a Christian and cannot live peacefully in Indonesia. The applicant said that he could not seek help from a lawyer because of his financial condition;
·the applicant further submitted that he would like an extension of time to plead his grounds of appeal; and
·the applicant informed the Court that he has volunteered to give blood to certain people who “really need [his] blood”; that he would like to be able to live in Australia lawfully, have a business and pay his taxes; and that he would like to become a very good citizen.
I turn first to consider the issue of delay. The applicant’s explanation for the delay in filing the application for leave to appeal is that he did not receive a written judgment and that he received an order from the Federal Circuit Court on 23 May 2017. In oral submissions he said that he did not receive “the letter” from the primary judge. The applicant was present in court when the primary judge gave his ex tempore reasons for judgment and made orders dismissing the applicant’s application. Contrary to the applicant’s submission, it is not for an interpreter to inform an applicant or any party to litigation of the time within which steps should be taken, such as the filling of an application for leave to appeal. That said, the applicant was not represented before the Federal Circuit Court and is not represented in this Court. Understandably, he may not be familiar with the requirements of the Court’s rules in relation to the time for the filing of court process.
The applicant submitted that he would like an extension of time to plead his grounds of appeal. As I have already observed, he was present when the primary judge gave his ex tempore judgment. However, even if he were not able to provide grounds of appeal based on those oral reasons, he has had a copy of the written reasons for judgment of the primary judge since at least late-July 2017 when the affidavit of Chloe Hillary affirmed 24 July 2017 was served on him. That affidavit annexed, among other things, a copy of the decision of the primary judge. Despite that, the applicant has not provided any more detailed grounds of appeal as foreshadowed in his draft notice of appeal.
The Minister does not point to any prejudice that he would suffer by reason of an order being made for an extension of time. I infer that there is none. But, even if I am satisfied by the explanation for the delay and that there is no prejudice to the Minister, those factors are not determinative of the application for an extension of time for leave to appeal. Common to both the extension of time and the leave to appeal is the issue of the merits of the proposed appeal.
The draft notice of appeal does not include any ground that discloses an arguable case of error on the part of the primary judge. The applicant simply disagrees with the conclusion reached by the primary judge. In my opinion, the proposed appeal is not reasonably arguable, nor do the submissions made by the applicant today disclose an arguable case of error on the part of the primary judge. By those submissions the applicant either seeks merits review or raises issues that simply do not arise or are not relevant to the decision of the primary judge.
It follows that the applicant has failed to show that the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration by a Full Court. Substantial injustice would not result if leave were refused.
CONCLUSION
In those circumstances the applicant’s application should be refused and the applicant ordered to pay the Minister’s costs. I will make orders accordingly.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 11 December 2017
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