FEDERAL COURT OF AUSTRALIA AOT15 v Minister for Immigration and Border Protection [2016] FCA 1085 Appeal from: Application for extension of time and leave to appeal: AOT15 v Minister for Immigration & Anor [2016] FCCA 470 File number: NSD 698 of 2016 Judge: BROMWICH J Date of judgment: 8 September 2016 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time and leave to appeal – where no prospect of success for underlying appeal – application dismissed – fixed costs awarded Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.12(1)(a) Federal Court of Australia Act 1976 (Cth), s 24(1A) Federal Court Rules 2011 (Cth), rr 35.13, 40.43(3)(b) Cases cited: Appellant S395 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Sekigawa v Minister for Immigration and Border Protection [2016] FCA 127; (2016) 237 FCR 276 SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 276 ALR 247 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286 Date of hearing: 23 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 54 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms N Blake, Clayton Utz Solicitor for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 698 of 2016 BETWEEN: AOT15 Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BROMWICH J DATE OF ORDER: 8 SEPTEMBER 2016 THE COURT ORDERS THAT: 1. The application for an extension of time and leave to appeal be dismissed. 2. The applicant pay the first respondent's costs fixed in the sum of $3,600, pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BROMWICH J: Introduction 1 This is an application for an extension of time and for leave to appeal from orders made by a judge of the Federal Circuit Court of Australia on 4 March 2016, by which his Honour dismissed an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal, under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). His Honour ordered that the applicant pay the first respondent's (the Minister's) costs and disbursements fixed in the sum of $3,416. The Tribunal had, on 24 March 2015, affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 2 For the reasons that follow, the application for an extension of time and for leave to appeal must be dismissed with costs (fixed in the sum of $3,600). History of the proceedings 3 On 18 May 2013, the applicant, a citizen of the People's Republic of China, arrived in Australia on either a visitor's visa (Federal Circuit Court [3]) or tourist visa (Tribunal [7]), the particular type of arrival visa being presently immaterial. Before the Delegate 4 On 24 June 2013, he applied for a protection visa, based on claims of being a Falun Gong practitioner and an asserted fear of local police giving him trouble, being detained as he had in the past and being put in gaol. His application was supported by a three and a half-page statement. 5 On 16 December 2013, the applicant attended an interview with a delegate of the Minister as invited. A Mandarin interpreter attended. 6 On 18 February 2014, the delegate refused the grant of a protection visa. Because the applicant at the hearing of this matter in this Court raised issues with the interpreter at the interview, as detailed further below, it is necessary to provide some detail about what took place at the interview, as recorded in the delegate's reasons. 7 After summarising the applicant's written claims, the delegate recorded in some detail the questions that were asked of the applicant about Falun Gong, including the delegate's requests for physical demonstrations of some of the five exercises of Falun Gong. No issue was raised about the correctness of those requests or questions, or what the correct answers should have been. The answers and exercise demonstrations given by the applicant indicate both that the questions were understood, and that the responses were capable of supporting the delegate's conclusion that the applicant was not a genuine Falun Gong practitioner, and was not detained in China for that reason. 8 The delegate also recorded asking questions of the applicant about his detentions and interactions with Chinese authorities. Again, the answers given by the applicant indicate both that the questions were understood, and that the responses were capable of supporting the delegate's conclusion that the applicant did not have an adverse profile with Chinese authorities. The delegate commented that the responses given were neither spontaneous, nor detailed. 9 In substance, the delegate's reasons indicated that the applicant failed in his initial protection visa application because he was not believed, not because he was not understood. Before the Tribunal 10 On 20 March 2014, the applicant applied to the Tribunal for review of the delegate's decision. There was a first Tribunal decision which can be disregarded because the applicant was not notified of the hearing. 11 On 16 March 2015, the matter was reheard by the Tribunal, with the applicant being able to attend. 12 On 24 March 2015, the Tribunal affirmed the delegate's decision refusing the grant of a protection visa to the applicant. Again, because of the interpreter issue raised by the applicant in this Court, it is necessary to provide some detail about what took place at the Tribunal hearing, as recorded in the Tribunal's reasons. 13 The Tribunal took a more beneficial view of the applicant's Falun Gong practitioner claims, being prepared to accept that the applicant may have commenced practising Falun Gong in 1998 as claimed, when that was legal in China. However, when questioned about what had happened in November 1999 and beyond, the applicant did not adhere to his written account which suggested he had been charged with three offences. He also asserted that his father had been a leader of Falun Gong, contrary to the information available to the Tribunal which indicated that Falun Gong did not have leaders. This apparent attempted enhancement of the applicant's claim, however it was interpreted, was rejected as being untrue. 14 The Tribunal tested the applicant's claim to have been required to attend the local police station every one to two months for 10 years, later amended to being every one to two months for four or five years and thereafter to once or twice a year. The applicant said that all that had happened to him at those times was to wait for up to half a day before being questioned and released. 15 The Tribunal also tested claims that Falun Gong practitioners were discriminated against and constantly bullied. The Tribunal noted that while it proved difficult to establish clearly what the applicant believed he was actually subjected to, it was not satisfied that being spoken to by the authorities once or twice a year constituted being discriminated against and constantly bullied, as contrasted to the country information which indicated the more severe sorts of treatment Falun Gong practitioners were subject to, which the applicant did not claim happened to him or his father. 16 The Tribunal accepted that the applicant was briefly detained, and not charged, on two occasions in the second half of 1999. The Tribunal also accepted that the applicant was, at the time of those detentions, subject to some limited reporting conditions. However, the Tribunal was not satisfied that for the last ten years the applicant had been required to report to the police at all (at least with respect to his former Falun Gong practise). The Tribunal concluded that it was not satisfied that the applicant was a genuine Falun Gong practitioner as claimed. 17 The Tribunal then turned to the issue of what would happen to the applicant if he was returned to China, with particular reference to the High Court's decision in Appellant S395 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473. Appellant S395 does not permit any requirement being imposed on a protection visa applicant to act discreetly in the pursuit of their Convention-related activities, or otherwise be required to take reasonable steps to avoid persecutory harm. 18 The Tribunal was not satisfied that the applicant would wish to continue to practise Falun Gong in China, because that was not reflected in his past behaviour, because he was not a reliable witness and because it was not satisfied the applicant had regularly practiced Falun Gong in Australia, even if he did so irregularly and from time to time as a mode of socialising. The Tribunal was not satisfied the applicant would be imputed with Falun Gong beliefs or would be of adverse interest to Chinese authorities for that reason. 19 The detail of the matters that the Tribunal raised with the applicant without any mention of interpreter difficulties suggests that no such problem was apparent. Before the Federal Circuit Court 20 On 24 April 2015, the applicant commenced judicial review proceedings in the Federal Circuit Court by way of a show cause application. The two grounds of review were: 1. Jurisdictional error has bee[n] made. The tribunal doubts my claim without substantive evidence and reach mistaken conclusion. 2. RRT considers my case with bias. RRT does not completely consider my situation. They consider little about harm I will suffer if I return to China. 21 On 4 March 2016, a hearing of the judicial review application took place before the primary judge. His Honour dismissed the application by way of an ex tempore judgment delivered on the same day, with revised reasons subsequently published. 22 The primary judge summarised the written claims made by the applicant in the Federal Circuit Court, the claims made at the Tribunal hearing and the conclusions reached by the Tribunal. His Honour invited oral submissions from the applicant, who first stated that he was, in effect, holding something back at the time of consideration of his claims by the delegate. As his Honour observed, if that was so, any such issue could have been overcome at the Tribunal stage. 23 The primary judge noted that the applicant asserted – in context, it would seem to me, complained – that the Tribunal asked many tricky questions of the applicant. In response to this complaint, the primary judge correctly observed that the Tribunal was entitled to test vigorously any claims made by a visa applicant. 24 The applicant told the primary judge that he was not able to explain things clearly to the Tribunal and was at a loss to understand why he was disbelieved. If there had in fact been any problem with the interpreter before the Tribunal, as opposed to the applicant struggling to make an objectively thin case based on largely distant historical events compelling, this was surely the time at which that would, could and should have been raised by the applicant. That is especially so in light of the fact that an interpreter issue was raised by the primary judge of his Honour's own initiative in the Federal Circuit Court hearing, as noted below. 25 The primary judge concluded that the first ground of review was without merit because it proceeded upon the flawed premise that the Tribunal could not make findings based upon inferences, or without contradictory evidence. His Honour cited the well-known and frequently quoted case of Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 to the effect that credibility findings are properly a matter for the Tribunal. 26 The primary judge also found that the second ground of review alleging bias on the part of the Tribunal and that the Tribunal failed to consider the harm the applicant would suffer if he returned to China was also without merit. This was because there had been no attempt to provide any proper foundation for such an allegation, and none was apparent to his Honour. 27 The primary judge noted that during the course of the hearing before his Honour "at one point both the applicant and the interpreter expressed some difficulty in understanding one another": [2016] FCCA 470 at [26]. His Honour's way of dealing with this was outlined in the following paragraph as follows: 27. I tested their capacity to understand one another by asking some general conversational questions. I was satisfied on the basis of those questions and answers that the standard of interpretation today was adequate. 28 The primary judge therefore concluded that the applicant was unable to demonstrate any arguable case of jurisdictional error affecting the Tribunal's decision and dismissed the application with costs. As the applicant did not seek to be heard on costs, his Honour fixed costs in accordance with the Federal Circuit Court scale in the sum of $3,416. Proceedings in this Court 29 On 13 May 2016, the applicant filed an application for an extension of time and leave to appeal in this Court from the judgment of the primary judge. Rule 35.13 of the Federal Court Rules 2011 (Cth) provides that a written application for leave to appeal must be filed within 14 days after the date on which the judgment is pronounced or order made, or on or before such other date as is fixed for that purpose by the Court from which leave to appeal is sought. No other date was fixed, so the application for leave to appeal from the 4 March 2016 decision of the primary judge was required to be made by 18 March 2016. The application filed in this Court on 13 May 2016 was therefore eight weeks late, and required the granting of an extension of time in which to bring an application for leave to appeal. 30 The Full Court has relatively recently confirmed that the factors which the Court should generally take into account in determining whether to grant an extension of time include the length of delay and whether there is an acceptable explanation, the merits of the appeal, and any prejudice to the opposing party, although the mere absence of prejudice is not sufficient: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. 31 The delay in filing the present application was relatively small, and although this remained unexplained, it was not suggested by the Minister, either orally or in written submissions, that this of itself was a sufficient reason to refuse an extension of time if the application was otherwise meritorious. While the application referred to the applicant having a mistaken belief that he had 28 days in which to apply, rather than only 14 days, that does not explain the further six week delay after that 28 day period. The main barrier advanced by the Minister to the grant of an extension of time was the asserted lack of merit in the proposed appeal, which in turn relies upon the prospects of the underlying application for review succeeding. 32 The discretion to grant leave in s 24(1A) of the Federal Court of Australia Act 1976 (Cth) is unfettered. However, the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399-400 accepted a line of authority as to the general guidance to be applied which a court should normally accept in the exercise of the discretion. That guidance comes down to two tests: (1) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered on appeal; and (2) whether substantial injustice would result if the leave were refused, supposing the impugned decision to be wrong. 33 The two tests are not in separate compartments but are cumulative so that both must be made out and also bear on each other, so that the degree of doubt which is sufficient in one case may be different from that required in another: see Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at 38 [5]; see also Sekigawa v Minister for Immigration and Border Protection [2016] FCA 127; (2016) 237 FCR 276 at 279 [12] in which it was further observed by Flick J that the utility or otherwise of granting relief was also relevant to the exercise of the discretion. 34 There will continue to be cases raising special considerations and, accordingly, a court should not regard its hands as tied by the guidance in the two tests. Neither party has suggested that any special consideration applies to this case, and none is apparent. 35 It follows from the above that a primary consideration both as to an extension of time and as to leave to appeal in most cases, and in this case in particular, is the merits of the proposed appeal. In this case, that turns on the proposed grounds of appeal in the draft notice of appeal, and anything additional said at the hearing of the application for an extension of time and leave to appeal. Consideration 36 The proposed grounds of appeal in the draft notice of appeal are as follows: 1. The Tribunal doubts my claim without substantive evidence. 2. The Tribunal was biased. The Tribunal failed to consider the persecution to me if I return to China. 37 The above two proposed grounds have the following features: (1) both grounds are, in substance and in form, substantially the same as those before the primary judge; (2) no attempt was made to identify any error on the part of the primary judge; and (3) it should be (somewhat generously) inferred that the underlying complaint is that the applicant is contending that the primary judge erred in not upholding these complaints about the Tribunal. 38 In my view, both proposed grounds of appeal have no merit for substantially the same reasons as those identified by the primary judge for substantially the same complaints. Proposed Ground One 39 As to the first proposed ground of appeal, the Tribunal did not need to have before it substantive evidence contrary to the case that the applicant advanced for the grant of a protection visa. Indeed that will rarely be the case for matters of this kind. What matters is that the Tribunal, having appropriately tested what was being presented as a reason for granting the visa sought, was unable to reach the required state of satisfaction, which then required the application to be refused in compliance with s 65 of the Migration Act 1958 (Cth). There is no discernible error in the approach or reasoning process adopted by the Tribunal. Proposed Ground Two 40 In relation to the allegation of bias, the primary judge correctly pointed out that such a serious allegation must be firmly and distinctly made and clearly proven, referring to Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 531 [69]. His Honour was correct to observe that the applicant could only make out a claim of bias where the Tribunal's conduct would indicate to a fair-minded and informed person that the Tribunal might not have brought an impartial mind to bear to the issue to be decided, referring to NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at 268 [14]. No attempt was made by the applicant even to identify conduct that might meet this description. I agree with his Honour that no such failing or problem is apparent. 41 It would seem that the allegation of bias turns on nothing more than disagreement with the adverse result. It is clear that no inference of bias or prejudgment should be drawn merely from adverse findings in a Tribunal's reasons: VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 at 107-8 [21]-[22]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36]-[38]; WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286 at [3], [9]-[10]. Other issues arising during the hearing 42 The final remaining substantive issues to be addressed turn on matters raised by the applicant during the course of the hearing in this Court. 43 The first issue is a suggestion made by the applicant from the Bar table that he brought with him from China a flash drive (commonly also referred to as a USB stick) with information he had downloaded from a website in China. The applicant said that the delegate refused to accept the flash drive because of concerns about a virus. 44 The applicant said that he had not mentioned the flash drive again either before the Tribunal or before the primary judge. Putting to one side the fact that the occurrence of this alleged event was not referred to in the applicant's application for an extension of time and leave to appeal, nor in his supporting affidavit or draft notice of appeal, nor indeed anywhere else that I have been able to detect, this was a matter that the applicant needed to raise at least before the Tribunal and probably before the primary judge in order to raise it in this Court. In any event, there was nothing to indicate what possible difference this suggested material could have made. This issue does not assist the applicant in this Court. 45 Even if the flash drive had been given to the delegate and not passed on to the Tribunal, SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 276 ALR 247 indicates that even if the Secretary of the Minister's Department has material which, via an officer, is not passed on to the Tribunal as required, that alone will not constitute jurisdictional error except perhaps in an extreme case in which the document in question was so clearly critical that it could be inferred that failure to supply it meant there was no discharge of the obligation reposed in the Tribunal. There is no evidence or even suggestion that the flash drive was even given to the delegate, which seems unlikely to have occurred in light of its rejection because of the virus concern expressed by the delegate, let alone that it contained anything of significance. 46 The second issue raised by the applicant at the hearing was an assertion from the Bar table that "The interpretation was very difficult, and I couldn't – many things just don't make sense to me" and that this was so on "All the previous occasions. All the interpreters. I had difficulty understanding them." The applicant indicated that the problem was one of dialects of Mandarin, and informed me that the Tribunal interpreter was from southern China and the Federal Circuit Court interpreter was from Shanghai, whereas the applicant was from a different province. 47 This allegation about interpreter problems was made for the first time in this Court. No such allegation was apparently made to the Tribunal in respect of the delegate's decision or processes, nor to the primary judge in respect of the Tribunal's decision or processes. It is not mentioned in the applicant's application for extension of time and leave to appeal, nor in his supporting affidavit or draft notice of appeal. In circumstances where there is no pleading raising such a problem, no evidence (let alone evidence able to be tested) that this occurred, and nothing to indicate any real problems that might have been encountered (let alone any problem which could possibly have made any difference to the outcome of the proceedings), this bare complaint cannot assist the applicant. That is especially so as I pressed the applicant on this issue and his only response was to suggest that "Maybe another new assessment can be started from the beginning". 48 The applicant did not identify any particular problem pertinent to his case that arose from any difficulties he may have encountered. It is objectively doubtful that there was any such problem, at least to the point of making any discernible possible difference to the proceedings before the Tribunal, as the discussion of what took place before the Tribunal at [13] to [19] above indicates. I am not satisfied that there was in fact any problem with interpretation of any moment, let alone of sufficient moment to vitiate the proceedings before either the Tribunal or the primary judge. 49 As there is nothing of substance in any aspect of the case that the applicant seeks to bring by way of an appeal, there is insufficient merit to warrant granting either an extension of time or leave to appeal. The application in this Court must therefore be dismissed. Costs 50 In the event that the application for an extension of time and leave to appeal was dismissed, the Minister sought a fixed costs order, relying on an affidavit of one of the Minister's solicitors, sworn and filed in this Court on 16 August 2016. The applicant did not seek to be heard on costs. 51 The solicitor's affidavit deposes to: (1) the incurring of actual costs up to the date of her affidavit on 16 August 2016 of $3,948; (2) further costs to the point of judgment, estimated to be an additional $1,230; (3) a likely recovery of the sum of the above figures ($5,178) of between 65% ($3,365.70) and 75% ($3,883.50), based on the experience of her supervising partner, given his involvement in several thousand matters for the Minister during the previous 15 years; and (4) a short form bill of costs under r 40.43(3)(b) of the Federal Court Rules entitling the Minister to claim up to $6,439 [corrected orally in Court to $1,756, the greater figure being the amount the Minister would be entitled to pursuant to the long form procedure] in respect of costs and disbursements of these proceedings in this Court. 52 The affidavit identifies a midway point between the two estimated recovery figures of 70% of the total costs incurred and expected to be incurred of $5,178, being $3,624.60, and seeks a fixed costs order in that sum. Rounded down further to $3,600, I consider that this is a reasonable figure in all the circumstances. 53 I also consider that no further costs should be wasted by any process of assessment or taxation of costs in this matter. I am therefore satisfied that it is appropriate to fix costs and disbursements in the sum of $3,600. Conclusion 54 The application for an extension of time and leave to appeal must be dismissed. The applicant must pay the first respondent's costs fixed in the sum of $3,600. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate: Dated: 8 September 2016