FEDERAL COURT OF AUSTRALIA MZAGB v Minister for Immigration and Border Protection [2016] FCA 124 Appeal from: Application for extension of time: MZAGB v Minister for Immigration and Border Protection [2015] FCCA 2772 File number: VID 567 of 2015 Judge: DAVIES J Date of judgment: 16 February 2016 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia – application for extension of time – merit of proposed appeal – application dismissed Legislation: Migration Act 1958 (Cth) s 426A Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 Date of hearing: 16 February 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: S Rebikoff Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS VID 567 of 2015 BETWEEN: MZAGB Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: DAVIES J DATE OF ORDER: 16 FEBRUARY 2016 THE COURT ORDERS THAT: 1. The application for an extension of time be dismissed. 2. The applicant pay the costs of the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 This is an application for an extension of time in which to appeal from the decision of the Federal Circuit Court refusing the applicant's adjournment request and dismissing the applicant's application for judicial review of the decision of the Refugee Review Tribunal ("Tribunal") refusing to grant the applicant a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) ("Migration Act"). 2 The applicant has not attended the hearing nor complied with the orders of the Court in respect of the provision of submissions in support of his application. I am satisfied on the basis of correspondence provided to me by counsel appearing for the first respondent ("Minister") that the applicant has notice of the hearing this day. No explanation has been received by this Court as to why the applicant is not in attendance. 3 Although the applicant was out of time to appeal by a short period only, the applicant has not furnished any explanation as to why the appeal was not lodged within time. The failure to lodge the appeal within time is consistent with a pattern of conduct on the part of the applicant in relation to his application for a protection visa. It is noted that whilst the applicant arrived in Australia in 2009 as a dependent holder of a student visa granted to his then-wife, he did not make his application for a protection visa until 2013 after he had been in Australia unlawfully for two years. It is further noted that the applicant, having lodged his application for a protection visa, did not arrange an interview before a delegate of the Minister, although invited to do so. The delegate refused his application for the visa and the applicant applied to the Refugee Review Tribunal for review of the decision. The applicant did not attend the Tribunal hearing. The Tribunal decided not to exercise its discretion to reschedule the hearing and pursuant to s 426A of the Migration Act made a decision on the applicant's application for review of the delegate's decision without taking any further action to allow or enable the applicant to appear. The reasons given by the Tribunal for determining the application in the applicant's absence were as follows: 18. The applicant submitted a copy of the delegate's decision record to the tribunal (the delegate's decision). 19. In the delegate's decision it is noted that the applicant did not arrange for a Department interview for this application. 20. The delegate's decision notes that the applicant first made claims for protection after having arrived in Australia in 2009 as a dependent holder of a student visa granted to his then wife, after becoming divorced, and after being apprehended by police in 2013, having been unlawfully in Australia for two years. It is also noted that after being placed in detention the applicant is recorded to have stated that there was no reason he could not return to India and that there were 'no issues' with regard to his return. 21. The Tribunal wrote to the applicant advising that it had considered the material before it and that it was unable to make a favourable decision based on that material. The Tribunal's letter was sent by pre-paid post and dispatched within three working days of the date on the letter, to the last address for service provided by the applicant in connection with the review. I am satisfied that the Tribunal's letter complied with the provisions of s.441A(4). 22. The applicant was invited to appear before the Tribunal to give evidence and present arguments on 9 May 2014 at the Tribunal's Melbourne Registry. 23. The applicant did not appear before the Tribunal on the day and at the time and place that he was scheduled to appear, nor did he indicate his intention to do so by returning the form 'Response to Hearing Invitation', or by making any contact with the Tribunal since lodging his review application. 24. In the above circumstances, and in circumstances where the applicant had not attended an interview with the Department in relation to his application, pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 4 After consideration of the applicant's claims and evidence, the Tribunal concluded on the basis of the material before it that the applicant did not satisfy the criteria for the grant of a protection visa. Amongst other matters, the Tribunal stated that the material before it consisted of "a small number of bald and unsubstantiated claims", which were "grossly lacking in convincing detail". The Tribunal did not accept that the applicant had presented a credible set of claims for protection, and determined that the applicant faces no real risk of harm if he returned to his home area in India. 5 The Federal Circuit Court dismissed the applicant's application for judicial review of the Tribunal's decision, having rejected an application by the applicant's solicitor for an adjournment of the proceeding. In rejecting the application for an adjournment, the Federal Circuit Court noted that the applicant had attended a directions hearing before Registrar Caporale on 17 December 2014, and at that time was given until 23 July 2015 to file any amended application and any submissions. The Federal Circuit Court noted that the applicant appeared not to have made any endeavour to contact his solicitor until the day before the hearing, and that delay was not in any way explained. At [10]–[11] the Federal Circuit Court stated: 10. The first respondent's written submissions point out that the applicant arrived in Australia on a class TU subclass 572 (student) visa. That was in 2009. Notwithstanding telling a departmental officer in 2013 that there was no reason he had to prevent his returning to India, that he felt happy here and was at home here and did not want to leave, the applicant then filed his protection application on 30 September 2013. Heerey J, amongst others, has pointed out that a court or a Tribunal is entitled to regard the delay in the application for the Protection visa as a relevant matter. 11. In the circumstances where the Court Book reveals the matters to which I have referred, it is immediately apparent that it is wholly inappropriate to adjourn the proceeding. I accept, and repeat again, no criticism whatsoever redounds to the applicant's solicitor. But the applicant has delayed until the absolute last moment to seek legal advice. There is nothing in his grounds of application to the court that articulates, let alone sets out in any convincing way, any asserted jurisdictional error on the part of the Tribunal. 6 The Federal Circuit Court concluded that the Tribunal's factual findings were clearly open to it and the applicant's claims did not advance a Convention nexus in any event. It was held that in the circumstances, including the past history of the applicant's failure to attend relevant hearings, and the inescapable weakness of his case, it was not in the interests of the administration of justice to adjourn the hearing. The Federal Circuit Court accordingly dismissed both the adjournment application and the substantive application for judicial review. 7 Factors that are relevant to the exercise of the Court's discretion to grant the extension of time are whether the applicant has an acceptable explanation for the delay and the merits of the proposed application for leave to appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 at 348–9 (FCR). 8 As stated, the applicant provided no explanation as to why he did not lodge his appeal within time. In view of the applicant's prior history in relation to the prosecution of his protection claim, the delay in making his application for leave to appeal, albeit short, is a factor against a grant of extension of time. 9 Moreover, a perusal of the proposed grounds of appeal does not disclose any matter which would found a reasonable argument that there was any error of law on the part of the Federal Circuit Court in dismissing the adjournment application and the substantive application for judicial review. 10 I accept the submission for the Minister that it was open to the Federal Circuit Court to refuse to grant the adjournment in the circumstances where no explanation at all had been provided by the applicant as to why he delayed until the very last moment to appoint a lawyer to represent him at the hearing. Further, in the circumstances where no merit was shown in the applicant's application for judicial review, it was not in the interests of justice for an adjournment to be granted. I can discern no error in the finding of the Federal Circuit Court that the Tribunal decision did not contain any jurisdictional error. Accordingly, the application for an extension of time is dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate: Dated: 19 February 2016