FEDERAL COURT OF AUSTRALIA MZZWU v Minister for Immigration and Border Protection [2016] FCA 166 Appeal from: Application for an extension of time and leave to appeal: MZZWU& Anor v Minister for Immigration & Anor [2015] FCCA 2443 File number: VID 655 of 2015 Judge: BROMBERG J Date of judgment: 23 February 2016 Catchwords: MIGRATION – application for extension of time and for leave to appeal – delay in lodging appeal short and adequate explanation provided – no prejudice to respondent – whether merit in proposed appeal – no merit in proposed appeal – no evident error in primary judge's approach to setting aside orders – no evident error in primary judge's earlier determination that applicants' substantive judicial review application without merit – application dismissed. Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Circuit Court Rules 2001 (Cth) rr 13.03C, 16.05 Migration Act 1958 (Cth) Cases cited: MZZWU v Minister for Immigration and Border Protection [2015] FCCA 2443 MZZWU v Minister for Immigration and Border Protection [2014] FCCA 1425 Date of hearing: 23 February 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 28 Counsel for the Applicants: The applicants appeared in persons and the second applicant was assisted by an interpreter Counsel for the First Respondent: Mr L Brown Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting notice ORDERS VID 655 of 2015 BETWEEN: MZZWU First Applicant MZZWV Second Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BROMBERG J DATE OF ORDER: 23 FEBRUARY 2016 THE COURT ORDERS THAT: 1. The applicants' application for an extension of time and leave to appeal, dated 19 October 2015, be dismissed. 2. The applicants pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BROMBERG J: 1 This is an application for an extension of time to lodge a Notice of Appeal. The applicants, MZZWU and MZZWV, seek to institute an appeal from the judgment of the Federal Circuit Court given on 24 September 2015 and published as MZZWU v Minister for Immigration and Border Protection [2015] FCCA 2443. 2 There is a complicated procedural background which I will need to outline. But, first, I should give a brief factual outline. Factual and Procedural Background 3 Both of the applicants are from India and arrived in Australia on 27 February 2013 as the holders of Subclass 676 (Tourist) visas. The applicants are husband and wife, the first applicant being the husband. The first applicant made an application for a Protection (Class XA) visa under the Migration Act 1958 (Cth) (Act). The second applicant also applied for a Protection (Class XA) visa as a dependent member of the first applicant's family. Those applications for visas were rejected by a delegate of the first respondent (Minister). An application for review of the delegate's decision was brought before the second respondent, then called the Refugee Review Tribunal (Tribunal). 4 By a decision dated 11 November 2013, the Tribunal affirmed the decision not to grant the applicants Protection (Class XA) visas. By an application filed on 5 December 2013, the applicants sought judicial review of the Tribunal's decision before the Federal Circuit Court. On 19 February 2014, the Federal Circuit Court fixed the hearing of that application for 2 July 2014 at 10.00 am before the primary judge. When the matter was called on for hearing on 2 July 2014 the applicants did not appear and the matter was dismissed by order dated 2 July 2014. 5 The primary judge gave reasons for his judgment, which are published as MZZWU v Minister for Immigration and Border Protection [2014] FCCA 1425. The order made on 2 July 2014 states that the application was dismissed pursuant to r 13.03(c) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules). It seems that the reference there made was an apparent reference to r 13.03C of the FCC Rules. That rule provides: Default of appearance of a party (1) If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following: (a) adjourn the hearing to a specific date or generally; (b) order that there is not to be any hearing, unless: (i) the proceeding is again set down for hearing; or (ii) any other steps that the Court directs are taken; (c) if the absent party is an applicant—dismiss the application; (d) if the absent party is a party who has made an interlocutory application or a cross-claim—dismiss the interlocutory application or cross-claim; (e) proceed with the hearing generally or in relation to any claim for relief in the proceeding. (2) If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just. 6 It appears from the reasons of the primary judge that, consistently with r 13.03C(1)(e), his Honour heard the application, considered its merits and determined that it ought to be dismissed. It may, however, be that, although his Honour addressed the merits, the primary judge intended only to rely on the absence of the applicants to dismiss their application under r 13.03C(1)(c). In the end, it does not seem to me to matter. For reasons that will become apparent, his Honour's discussion of the merits of the applicants' claim for judicial review is of some relevance. 7 By application dated 14 April 2015, the applicants sought to have the orders made on 2 July 2014 set aside. In an affidavit in support of that application, the first applicant stated, in essence, that he had failed to attend the hearing because he lacked legal representation and he was, therefore, not fully aware of the legal consequence of the court hearing and that his wife was severely ill. On 21 April 2015, the Federal Circuit Court fixed the hearing of that application (first application to set aside) for 5 June 2015 at 2.15 pm. It appears that the Federal Circuit Court relisted the matter for hearing by changing the time of the hearing to 9.15 am instead of 2.15 pm on 5 June 2015. 8 When the matter was called for hearing on 5 June 2015, the applicants did not appear. The primary judge made an order pursuant to r 13.03C(1)(d) of the FCC Rules, dismissing the first application to set aside. As far as I am aware, there are no published reasons for judgment in relation to that order. 9 By further application dated 11 June 2015, the applicants sought to have orders made by the primary judge set aside. The application sought to set aside the order made on 5 June 2015 (second application to set aside). 10 The application was supported by an affidavit of the first applicant. The first applicant deposed that the reasons he did not attend the hearing held on 5 June 2014 were, in essence, these. First, he was not represented and was not fully aware of the legal consequence of the court hearing; and, second, that he had not understood that the court listing had been changed from 2.15 pm to 9.15 am on 5 June 2015. The first applicant deposed to having attended at Court at 2.00 pm to find that his matter had already been dealt with in the morning. 11 On 2 September 2015, the primary judge heard the second application to set aside. The first applicant appeared on that occasion. 12 On 24 September 2015, the primary judge ordered that the second application to set aside be dismissed. The primary judge gave reasons for his judgment. That judgment is the judgment in relation to which the applicants seek an extension of time to institute an appeal. 13 In his reasons, the primary judge outlined some of the procedural history. He identified that the application before him, being an application to set aside a judgment or order, was to be dealt with under r 16.05 of the FCC Rules. That rule is in the following terms: Setting aside (1) The Court may vary or set aside its judgment or order before it has been entered. (2) The Court may vary or set aside its judgment or order after it has been entered if: (a) the order is made in the absence of a party; or (b) the order is obtained by fraud; or (c) the order is interlocutory; or (d) the order is an injunction or for the appointment of a receiver; or (e) the order does not reflect the intention of the Court; or (f) the party in whose favour the order is made consents. (3) This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order. Note: See sections 57 and 58 of the Family Law Act in relation to rescission of a divorce order. 14 At [11] of the primary judge's reasons, the primary judge recognised that he had a discretion under r 16.05(2)(a). His Honour considered that the following broad considerations were relevant to the exercise of that discretion: (i) the adequacy of the applicants' explanation for their absence at the hearing; (ii) the length of time between the Court's orders dismissing the proceeding and the making of the first application to have those orders set aside; and (iii) the merits of the substantive application. 15 His Honour addressed the first point at [12] of his reasons as follows (citations omitted): [12] The applicants' explanation for the failure to attend the hearing on 2 July 2014 is set out above. Nevertheless, it is well-established that the applicant has the onus of making proper inquiries and taking reasonable action to review a Tribunal's decision within the applicable time limits. As such, I am not satisfied that a lack of legal representation of itself is sufficient to explain the applicants' non-appearance in the absence of further particulars or argument. No medical evidence was provided to the Court in support of the applicant's wife's illness and how that would prevent the first applicant attending at the Court for what would ordinarily be a hearing of short duration. It is clear that no adjournment was sought or prior notice given to the Court or the first respondent. 16 As to the third point, the merits of the substantive application, his Honour said this at [13] (citations omitted): [13] In any event, and as set out above, my reasons of 2 July 2014 go further than simply dismissing the application pursuant to rule 13.03C of the Rules and address the merits of the application. No challenge or argument is now brought by the first applicant in respect of my determination. In such circumstances, I am persuaded in the terms of the first respondent's argument that there would be no utility in granting the application to set aside the orders dismissing the application. 17 For those reasons, the primary judge dismissed the second application to set aside. Paragraph [13] of the primary judge's reasons referred to and adopted his reasons of 2 July 2014, which addressed the merits of the substantive application. The merits of the substantive application for judicial review were set out at [22] to [41] of the earlier reasons as follows (citations omitted, italics as in original): Ground 1 [22] The [applicants] claim that the Tribunal decision was made without the applicants being given the opportunity to make comment pursuant to s424A of the Act. The applicant relies on the authority of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs. [23] Section 424A of the Act provides: 1. subject to subsections (2A & 3) the Tribunal must: a. give the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and b. ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and c. invite the applicant, to comment on or respond to it. 2. The information and invitation must be given to the applicant: a. except where paragraph (b) applies—by one of the methods specified in section 441A; or b. if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person. 2A. The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. 3. This section does not apply to information: a. that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or b. that the applicant gave for the purpose of the application for review; or ba. that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or c. that is non-disclosable information. [24] The application does not particularise what information ought to have been given to them for comment under S424A of the Act. Pursuant to ss424AA and 424A the Tribunal must disclose particular information before a hearing or, if disclosed at the hearing, then it must describe the nature and the effect of the information and adjourn the hearing to allow the applicant the opportunity to consider the material. The applicant does not particularise any allegation that the Tribunal failed to properly disclose information. No such failure is apparent on the [face] of the Tribunal's reasons. [25] The Tribunal did put certain information to the applicants for comment under s424AA. The Tribunal's reasons disclose that a partial response was provided but a request for additional time was sought and was granted. The Tribunal then wrote to the applicants by letter of 11 October 2013 setting out the adverse information and requesting a written response and/or comments by 6 November 2013. The applicants did not respond to the Tribunal's invitation. [26] The information set out in the Tribunal's letter of 11 October 2013 fell within the exception specified in s424A(3) in that it was information provided by the applicants and therefore an exception to the requirements of s424A(1). [27] Taking all of these matters into consideration I am satisfied that this ground of review has no merit. Ground 2 [28] The Applicant claims that the Tribunal had no jurisdiction to make its determination because its "reasonable satisfaction" was not arrived at in accordance with the requirements of the Act. [29] Section 65 of the Act provides that certain criteria must be satisfied prior to the granting of a visa. I accept the submission of counsel for the respondent that the Tribunal is not required to make out the case of an applicant but it is the applicant who must supply relevant material and evidence to satisfy the statutory criteria. [30] The Tribunal has jurisdiction pursuant to section 338 of the Act. The applicants do not particularise their complaint as to how they say the Tribunal's decision was "not arrived in accordance with requirements of the Migration Act". [31] I find that this ground of review has no merit. Ground 3 [32] The applicants argue that their circumstances satisfy the "four key elements of the Convention in definition" but that the Tribunal failed to take this into account and therefore fell into "factual and legal error". [33] I accept the submission of Counsel for the 1st Respondent that the reasons of the Tribunal clearly show a direct consideration as to whether the applicants satisfied the relevant criteria for protection under the Refugees Convention. Contrary to the assertion of the applicants, the Tribunal found at [56] of its reasons: Based on its credibility findings regarding the applicant's evidence, the Tribunal finds that the applicant did not have a real chance of serious harm arising out of any business dealings in India. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason, now or in the reasonably foreseeable future. [34] Consequently, and contrary to the applicants' assertions, the applicants did not satisfy 'the key criteria' for the granting of the visa under the Refugees Convention on the consideration of the Tribunal. [35] Accordingly, this ground has no merit. Ground 4 [36] The applicants claim that the Tribunal's decision was affected by actual bias constituting judicial error in that the Tribunal failed to investigate the applicants' claims of persecution. [37] I accept the submissions of counsel for the Respondent that the [Tribunal's] decision or other materials, does not disclose any prejudgment, partisanship, or hostility by the Tribunal towards the applicants. I again note compliance with s424A of the Act. [38] The applicants have not particularised any allegations of bias. [39] I am grateful to counsel for the respondent in providing me with [the] decision of the plurality of the High Court in Minister for Immigration & Citizenship v SZIAI where [their Honours] observed: it may be that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an enquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. [40] There is, however, no general obligation on the Tribunal to investigate the [applicants'] claims. Any consideration of whether the Tribunal had and/or failed to make enquiries require some particularisation from the applicants or, at the very least, the identifying of such an error on the face of the reasons. Given the lack of particulars, there was no obligation on the Tribunal to investigate the applicants' claims. The obligation is to review the decision of the delegate and it is for the applicants to give and adduce evidence and material and mount argument to satisfy the Tribunal on the merits. [41] Accordingly, this ground has no merit. 18 The factors that are relevant to the exercise of the Court's discretion to extend time for the filing of a Notice of Appeal are well established. The first matter I should consider is the extent of the delay. In this case, the applicants were out of time by eleven days. The delay is short. In submissions made by the first applicant this afternoon, he explained the delay on the basis that he does not speak English and that he was reliant on a friend to provide him with the appropriate forms for lodging his appeal and that there had been a delay in the friend providing those forms. In the circumstances, I am prepared to accept that an adequate explanation for the short delay has been provided. 19 The second aspect that I need to consider is whether the Minister will suffer any prejudice. The Minister does not assert any prejudice and that consideration is of no moment. 20 The third consideration is whether there is merit in the proposed appeal of the applicants. The Minister contends that there is no merit in the proposed appeal and, for reasons I shall now explain, I accept that the proposed appeal has insufficient prospects of success to warrant the extension of time which is sought. 21 In coming to that view, I have taken into account that the judgment from which an appeal is sought to be instituted was an interlocutory judgment within the meaning of s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Should the applicants be given an extension of time to lodge an appeal, the applicants would also need leave to appeal from an interlocutory judgment. The prospects of success of any appeal are, therefore, also dependent upon the applicants' prospects of convincing the Court that leave to appeal from an interlocutory judgment ought to be granted. The test for whether leave to appeal from an interlocutory judgment should be granted is also well established. Fundamentally, there are two considerations: first, whether the decision is attended with sufficient doubt to warrant it being reconsidered on appeal and, second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. 22 In my view, whether the proposed appeal has sufficient prospects of success to warrant the extension of time that is sought, and whether the judgment below is attended with sufficient doubt to warrant it being reconsidered, are questions that I can sensibly consider together under the rubric of whether or not the proposed appeal has sufficient prospects of success. 23 The applicants have not filed any written submissions and, despite the Court outlining to the first applicant the matters that I would need to be satisfied of in order to grant an extension of time, the applicants have made no submissions in support of the contention that an appeal would have sufficient prospects of success to warrant the grant of leave. 24 The draft Notice of Appeal does not really assist. The grounds do not deal the reasons for judgment of the primary judge of 24 September 2015. There is nothing in the draft grounds of appeal which identifies any error in the approach taken by the primary judge in rejecting the second application to set aside. Instead, the grounds raise asserted errors in relation to the primary judge's failure to identify error in the decision of the Tribunal. 25 There is no apparent error in the approach taken by the primary judge in dismissing the second application to set aside. His Honour identified the appropriate rule. The rule itself does not identify any considerations that may be taken into account in the exercise of the discretion but I can see no error in the considerations which the primary judge regarded as relevant. His Honour dealt with the applicants' explanation for their absence at the hearing. In particular, the judge noted that no medical evidence had been provided to the Court in support of the second applicant's alleged illness and why that would have prevented the first applicant attending court. The primary judge also noted that no adjournment had been sought nor prior notice given of the difficulty of attending court. 26 His Honour then considered the merits of the substantive application. At [13], the judge noted that no challenge or argument was made by the first applicant in relation to his Honour's earlier consideration of the merits of the substantive application for judicial review. In the absence of any challenge made at that time, it seems to me difficult for the applicants to now say that, in considering the merits of the substantive application, his Honour erred. If it be necessary for me to independently address the merits of the substantive application, I can see no apparent error in the approach that was taken by the primary judge at [22]–[41] of the primary judge's reasons for judgment of 2 July 2014. 27 It follows that the applicants' application for an extension of time should be dismissed. 28 The applicant made no submission resisting the application of the Minister that the costs of the application be paid by the applicants. In that event, I shall also make an order requiring the applicants to pay the Minister's costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 4 March 2016