FEDERAL COURT OF AUSTRALIA MZAER v Minister for Immigration and Border Protection [2016] FCA 1426 Appeal from: Application for extension of time: MZAER v Minister for Immigration & Anor [2016] FCCA 782 File number: VID 588 of 2016 Judge: LOGAN J Date of judgment: 18 November 2016 Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – applicant filed extension of time application – where applicant then decided to request Ministerial intervention to grant protection visa – applicant then filed a notice of unilateral discontinuance to discontinue extension of time application and related leave to appeal – Minister refused to grant protection visa – applicant then filed fresh application for extension of time – whether that fresh application is an abuse of process – whether proposed appeal enjoys any reasonable prospects of success – not necessary to determine whether fresh application is an abuse of process –proposed grounds of appeal devoid of any meaningful content – Migration Act 1958 (Cth) s 425, Federal Circuit Court Rules 2001 (Cth) r 13.02(3) Legislation: Migration Act 1958 (Cth) ss 48B, 417, 425 Federal Circuit Court Rules 2001 (Cth) r 13.02(3) Date of hearing: 18 November 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 23 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Counsel for the Respondents: Mr R Knowles Solicitor for the Respondents: Clayton Utz ORDERS VID 588 of 2016 BETWEEN: MZAER Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 18 NOVEMBER 2016 THE COURT ORDERS THAT: 1. The application for an extension of time and related leave to appeal is dismissed. 2. The applicant is to pay the first respondent's costs of and incidental to the application for an extension of time and related leave to appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 On 17 September 2013, the then Refugee Review Tribunal (Tribunal) affirmed a decision of a delegate of the Minister for Immigration and Border Protection (Minister) not to grant to the applicant under the Migration Act 1958 (Cth) (the Act) that class of visa known as a Protection (Class XA) visa. 2 The Tribunal accepted that the applicant was a citizen of Sri Lanka. He came here without a visa, arriving by boat on 19 July 2012. After arrival, he sought a protection visa. 3 On 16 October 2013, the applicant requested the Minister to exercise a personal power under s 48B and s 417 of the Act in relation to the granting of a visa. That request was refused by the Minister on 4 February 2014. 4 On 28 May 2014, the applicant applied to the Federal Circuit Court of Australia (Federal Circuit Court), for the judicial review of the Tribunal's decision and a related extension of time. On 6 August 2014, the applicant filed a notice of discontinuance in respect of that first extension of time and judicial review application. He filed that notice unilaterally. By that, I mean that the notice was not filed with the consent of the respondents to the application. 5 On 14 November 2014, the applicant filed a new application for judicial review and an associated extension of time. The grounds of review specified in that new application were the same as those specified in the discontinued application. It was a feature of those grounds that they were cast at the most general of levels. 6 On 28 July 2015, the date fixed for the hearing of his second extension of time and judicial review application, the applicant failed to appear before the Federal Circuit Court at the appointed time. He did attend at the court building that day but at the wrong time. In the meantime, the Federal Circuit Court had dismissed his application for his default in appearance. Realising his error, the applicant moved promptly, the very next day, 29 July 2015, to seek that the dismissal order made the previous day be set aside and his extension of time and judicial review application be reinstated. 7 On 17 May 2016, following a hearing on 29 March 2016, the Federal Circuit Court dismissed the application for setting aside the order of dismissal. That order was, in character, interlocutory. The effect of that was that the applicant had no right of appeal against that order, only an ability to seek leave to appeal. 8 Under the Federal Circuit Court Rules 2001 (Cth), the leave to appeal application should have been filed within 14 days of 17 May 2016. No application was filed until 6 June 2016. The nature of the application for hearing today is, therefore, one of an extension of time within which to seek leave to appeal and, if extension be granted, leave to appeal. 9 The principles to be applied in respect of such an application are well settled. They are: is there an adequate explanation for the delay and do the proposed grounds of appeal have any reasonable prospect of success? 10 An explanation for delay, if given, must always be weighed up against any prejudice which might fall on a respondent if the extension were granted. The Minister does not allege any particular prejudice in the event of the granting of an extension of time. 11 The applicant has given, by affidavit, an explanation. The Federal Circuit Court's judgment was given in Melbourne. At the time, and now, the applicant was living in Western Australia. He was unemployed and reliant upon friends for accommodation and food support. He did not have money to seek the services of a lawyer in Western Australia or elsewhere to advise him and he had no knowledge of court practice and procedure. In early June 2016 one of his friends took him to see a person whom he understood was a migration agent. The result of that was advice that he needed an extension of time and that he would need to file his application in Melbourne, Victoria. The applicant thereafter moved swiftly to file such an application here in Melbourne. That account of the reason for the delay is drawn from the applicant's affidavit and is not challenged as to its accuracy by the Minister. 12 I do not doubt the very particular difficulties faced by the applicant, who is obviously not fluent in English, by being unemployed and so distant from Melbourne, to say nothing of his understandable lack of familiarity with court practice and procedure. 13 The two considerations which I have mentioned in relation to whether or not an extension of time should be granted are not independent one of the other. They interplay. By that I mean, if there were a proposed ground of appeal, at least one, which had a reasonable prospect of success, an explanation which did not appear terribly compelling might nonetheless see an extension granted in the interests of justice. Appreciating this, the Minister, quite properly in my view, focused his submissions on whether or not the proposed grounds of appeal had any reasonable prospect of success. 14 The proposed grounds of appeal in the draft notice were described by the Minister in his submissions as generic. 15 This they truly are. The proposed grounds are as follows: 1. The Refugee Review Tribunal and/or the Federal Circuit Court of Australia erred in law and/or in fact, and thereby fell into jurisdictional error, when it took into account irrelevant maters and/or information and/or evidence as required by law; 2. The Refugee Review Tribunal and/or the Federal Circuit Court of Australia erred in law and/or in fact, and thereby fell into jurisdictional error, when it did not take into account relevant matters and/or information and/or evidence as required by law; 3. The Refugee Review Tribunal and/or the Federal Circuit Court of Australia erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the evidence presented by the Applicant; 4. The Refugee Review Tribunal and/or the Federal Circuit Court of Australia erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed and discounted the evidence presented by the Applicant; 5. The Refugee Review Tribunal and/or the Federal Circuit Court of Australia erred in law and/or in fact, and thereby fell into jurisdictional error, when it found and/or held that the evidence presented by the Applicant did not satisfy the requirements of the Migration Act 1958 and the Migration Regulations 1994 (Cth). which evidence the Tribunal failed to and/or failed to adequately and/or properly consider; 6. The Refugee Review Tribunal and/or the Federal Circuit Court of Australia did not act in a way that was fair and just; 7. The Refugee Review Tribunal and/or the Federal Circuit Court of Australia erred in law by making findings that were not open on the evidence before the Refugee Review Tribunal and/or the Federal Circuit Court of Australia; 8. The Refugee Review Tribunal and/or the Federal Circuit Court of Australia misconstrued or misapplied the applicable law, or otherwise failed to ask itself the right question; 9. The Refugee Review Tribunal and/or the Federal Circuit Court of Australia failed to comply with s 425(1) of the Migration Act 1958; [errors in original.] 16 In the course of his submissions this morning, I asked the applicant if he wished to give detail to those proposed appeal grounds. In reply, the applicant stated that he disagreed with the decision to which the Tribunal had come. While I do not doubt the sincerity of that disagreement, the applicant's reply did not give particularity which allowed the identification of a jurisdictional error made by the Tribunal in dealing with his case. 17 The applicant's claim for a protection visa centred around an asserted fear of persecution based on his political activities in Sri Lanka. The Tribunal did not accept that the applicant's fear was well founded. It is obvious from the Tribunal's reasons that the Tribunal very closely engaged indeed with the merits of the applicant's protection visa claim. In doing that, the Tribunal made a value judgment about those factual merits. In my view, the essence of that value judgment is captured in the following paragraph of the Tribunals reasons: 40. As the Tribunal put to the applicant in the hearing, it finds it implausible that as an ordinary member who engaged in low-level activities such as putting up posters, handing out flyers and even canvassing from house to house he would have warranted the continued interest of UPLF members of several years. Although the Tribunal indicated its acceptance that there may be instances of violence between opposing parties, particularly during elections, it finds it far-fetched that the applicant would have attracted the level of attention that he claimed during the hearing or that if he did, nothing further would have happened to him over that period of time. The Tribunal notes the applicant's response, that if they got the opportunity they would have killed him. However, as the Tribunal put to the applicant in the hearing, if their intention was to harm him, they had ample opportunity to do so. 18 That paragraph of the Tribunal's reasons also gives an insight into the way in which the Tribunal went about conducting the hearing. It is not just that the Tribunal offered, as it had to upon request, a hearing, it also gave to the applicant during that hearing particular opportunities to comment upon and give further evidence concerning potentially adverse conclusions. Reading the reasons as a whole, the impression created is that of a Tribunal engaging with the claim, as made, in a procedurally fair way and, having done that, reaching conclusions of fact that were reasonably open on the material before the Tribunal. 19 The learned primary judge dismissed the application to set aside the earlier order of dismissal for two reasons. One was that his Honour considered the second application for an extension of time and judicial review to be an abuse of process. The other was that his Honour could see no merit in the grounds of review proposed in the judicial review application. It is those grounds which, in essence, have been repeated as proposed grounds of appeal. 20 It is enough to dispose of the present application upon the Federal Circuit Court's conclusions about the merits of the grounds of review. It is a very moot point indeed as to whether a ground of review cast at the most general level engages jurisdiction at all. The grounds of review proposed, like the proposed grounds of appeal, were devoid of meaningful content in the absence of particularity. 21 Assuming, in respect of the alleged breach of s 425, that this particular pleading is sufficient, that ground has no prospect of success as, on the face of the record, the Tribunal did invite the applicant to appear before it and he took advantage of that opportunity. 22 The absence of any reasonable prospect of success in respect of an appeal is reason enough to dismiss this application. I prefer to dismiss the application on that basis. That is because I am by no means persuaded that the mere filing of a second application for extension of time and judicial review following a unilateral notice of discontinuance is in itself an abuse of process. I prefer to leave that as an open question. As to that, I note that r 13.02(3) of the Federal Circuit Court Rules 2001 (Cth) could be read as being premised on it not being an abuse of itself to institute a further proceeding. I say that because the rule seems to assume a power to stay the further proceeding until the costs which followed the earlier discontinuance have been paid. 23 This approach to the basis for dismissal corresponds with that promoted by the Minister. The Minister did not concede that the second proceeding was not an abuse, but instead chose to focus primarily on the merits of the proposed grounds of appeal. It is because I do not consider that the proposed grounds have any reasonable prospects of success that I dismiss the application for an extension of time and related leave to appeal. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 25 November 2016