FEDERAL COURT OF AUSTRALIA AJB16 v Minister for Immigration and Border Protection [2017] FCA 544 Appeal from: Application for extension of time: AJB16 v Minister for Immigration & Anor [2016] FCCA 3052 File number: NSD 2006 of 2016 Judge: LEE J Date of judgment: 12 May 2017 Catchwords: MIGRATION – application for leave to appeal – no merit to proposed appeal – application dismissed with costs Legislation: Migration Act 1958 (Cth), ss 375A, 424A, 438 Federal Court Rules 2011, r 36.03(a) Cases cited: AJB16 v Minister for Immigration & Anor [2016] FCCA 3052 Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 Date of hearing: 12 May 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 with the aid of an interpreter Solicitor for the First Respondent: Mr A Keevers of Sparke Helmore Counsel for the Second Respondent: The Second Respondent submitted save as to costs Table of Corrections 22 May 2017 The date of judgment and the date of order have been corrected. ORDERS NSD 2006 of 2016 BETWEEN: AJB16 Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LEE J DATE OF ORDER: 12 MAY 2017 THE COURT ORDERS THAT: 1. The application for extension of time filed on 22 November 2016 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) LEE J: Introduction 1 The applicant seeks an extension of time to appeal from the orders and judgment of the Federal Circuit Court delivered on 25 October 2016: AJB16 v Minister for Immigration & Anor [2016] FCCA 3052. 2 The extension of time application was filed on 22 November 2016 and was supported by an affidavit sworn by the applicant on the same date. 3 In that affidavit, the applicant explained that he failed to file a notice of appeal timeously because he was labouring under the misapprehension that the relevant appeal period expired 28 days from the date of the judgment. Of course, pursuant to FCR 36.03(a), the applicant was required to file and serve a notice of appeal within 21 days. Accordingly, this application having been filed on 22 November 2016, it was filed seven days after the date when the appeal period had expired. 4 It is trite that the exercise of the Court's discretion to extend time involves consideration of a number of matters which include, without limitation: the length of the delay, any explanation provided by the applicant for the delay, the prejudice to any respondent and, importantly, the underlying merits of the proposed appeal. 5 Mr Keevers, who appears on behalf of the first respondent, has indicated (correctly in my view), that there is little prejudice to the first respondent and that the delay is a brief one. In all the circumstances, I would be disposed to extend time to appeal provided I was satisfied that the underlying appeal had any merit or, to put it in another way, was reasonably arguable. I consider below the contentions in the draft notice of appeal in order to ascertain whether any such arguable merit can be identified but, before doing so, I turn to the relevant factual background. Relevant Background 6 The applicant is Nepalese. A first application lodged for a protection visa was refused by a delegate of the Minister in September 2010 and a subsequent application to review the decision of the Minister was unsuccessful. 7 It was in May 2014 that a second protection visa application was made and it is this application that has led ultimately to this application for an extension of time for leave to appeal. It appears that the second protection visa application was lodged following the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. 8 As would already be evident, a delegate of the Minister refused to grant the protection visa and the Tribunal affirmed the decision under review on 22 January 2016 (Tribunal Decision). The Tribunal Decision was then the subject of the proceeding in the Federal Circuit Court which was dismissed on 25 October 2016. A Summary of the Claims of the Applicant 9 The Tribunal Decision provides a useful and uncontroversial summary of the claims of the applicant: The applicant stated that he was homosexual and did not want to marry a woman. The applicant claimed he was unable to carry out a homosexual lifestyle openly and without fearing discrimination in Nepal. The applicant was constantly in fear of being seriously harmed by homophobic and conservative people due to his homosexuality. The applicant stated that he left Nepal to avoid this treatment from such people and to protect his dignity and lifestyle. The applicant stated that he Nepalese authorities were weak and corrupt and would not offer him protection. The applicant claimed he was unable to carry on a homosexual relationship because of the homophobic Nepalese culture. For a range of cultural, social and religious reasons, homosexual behaviour is invisible in the applicant's village. The applicant stated that he would live in terror of being outed and local people would routinely harass him. The applicant stated that if he were to be identified as gay he would be beaten, abused and mistreated and even jailed without bail. The applicant claimed he would be persecuted by society, the government and the police. The applicant claimed that he would be vulnerable to physical harm, harassment, discrimination, denial of basic social services, death and other serious harm because he is gay. The applicant stated that he would have to hide his status when going to the doctor or seeking employment. The applicant would feel strong pressure to marry, and experience anxiety and emotional abuse from his family and relatives. The Proposed Appeal 10 When the application was called on for hearing this morning, the applicant, who was assisted by an interpreter, provided an outline of submissions. In that document the applicant submitted that the Tribunal Decision was affected by jurisdictional error in the following respect: I submit that Judge (sic) Beach's judgement in MZAFZ-v-Minister for Immigration and Border Protection and Judges' (sic) Kenny, Perram and Mortimer JJ in the judgement in Singh-v-Minister for Immigration and Border Protection should be applied in my case for a procedural fairness. 11 This contention had not previously been advanced by the applicant but, with the consent of the first respondent, I allowed, in effect, the draft notice of appeal to be supplemented by this proposed ground. 12 It is convenient to deal with this supplementary contention immediately before turning to the other grounds of appeal. 13 The decision of Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 is not apposite to the circumstances of the case; MZAFZ was a case which involved consideration of obligations of procedural fairness in circumstances where a certificate was issued under s 438 of the Migration Act 1958 (Cth) (Act). The Full Court decision in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 involved a delegate of the Minister issuing a certificate to the Tribunal that, by virtue of s 375A of the Act, was not disclosed. The principal issue on appeal was whether the Tribunal had been required, as a matter of procedural fairness, to disclose the existence of the certificate. 14 The difficulty for the applicant is that there is no evidence whatsoever that in the present case any certificate was provided under either s 438 or s 375A of the Act. I have reviewed Singh (which coincidentally I understand to be the subject of a special leave to appeal application to be heard today) to ascertain whether there is any other matter relating to the circumstances of the applicant touched upon by the Full Court which could be relevant, but it seems to me that the additional contention raised for the first time this morning is simply misconceived and not reasonably arguable. 15 I now turn to grounds identified in the draft notice of appeal. Ground 1 16 Ground 1 advances an argument which can be broadly summarised into three contentions: first, that the Tribunal committed a jurisdictional error "by concluding that the applicant was not a homosexual" and, as a related matter, breached rules of procedural fairness "by unreasonably refusing [the applicant's] oral evidence"; secondly, it is contended that the Tribunal did not consider the applicant's fear of harm in Nepal because of its "arbitrary views"; thirdly, it is contended the Tribunal Member went beyond putting adverse views to the applicant and her answers were "frequently dismissive". 17 As to the first contention, in oral submissions, the applicant repeated the contention and made the argument that the Tribunal "did not know that he was not homosexual". In the Tribunal Decision at [48], the Tribunal did not make any such affirmative finding but, rather, expressed the conclusion that the Tribunal was "not satisfied that the visa applicant is genuinely homosexual" and that it was "not satisfied on the evidence" that the applicant told anyone in Australia he was homosexual or that he had visited homosexual bars in Sydney. 18 The primary judge, in dealing with a similar contention below, correctly noted that the applicant's contention appeared to be equating the rejection of his claims to be homosexual with a breach of procedural fairness: at [15]. Notwithstanding that the applicant has not particularised the breach of procedural fairness alleged, a review of the primary judge's reasons does not disclose any error in this regard. 19 Additionally, it should be noted that even if there was some error in the Tribunal's findings in this regard, it made further findings in relation to the applicant's ability to relocate within Nepal to Kathmandu which would have resulted in the primary judge refusing to exercise discretion to grant relief in any event. Additionally, in his oral submissions this morning, the applicant referred to the fact that he grew up in a small village and it was not possible for him to relocate to Kathmandu. The difficulty for the applicant is that the Tribunal reached a level of satisfaction that it would be reasonable for the applicant to relocate to an urban area such as Kathmandu and noted that the applicant had spent several months living there without any particular difficulty: see the Tribunal Decision at [51]. 20 Secondly, the contention the Tribunal did not consider the applicant's fear of harm because of arbitrary views was considered by the primary judge at [18] to [19] to be not so much an allegation of bias, but a contention that there was no reasonable or rational basis for the decision of the Tribunal, pointing to the fact that an arbitrary decision is, of course, a decision made without reason. 21 A review of the Tribunal Decision shows a rejection of the principal claim for protection by the applicant on the basis of an assessment of his credibility and, in particular, on the basis of concerns in relation to four separate matters which were explained by the Tribunal at [44] to [47]. The primary judge, in my view, was correct to conclude that irrespective of whether these were matters upon which other decision makers could have come to different views, the reasons demonstrate a process of reasoning which is rational and does not reflect jurisdictional error. 22 Thirdly, the contention that the Tribunal member was "frequently dismissive" goes nowhere unless it can be said to have undermined the findings made by the Tribunal in some identifiable way or rose to the level of demonstrating that the Tribunal did not bring an open mind to the determination of the review. There is no material before the Court, nor any evidence adduced before the primary judge to make out any contention of this type and no jurisdictional error has been demonstrated. To suggest otherwise is not reasonably arguable. Ground 2 23 Ground 2 is apparently linked to Ground 1 in that it amounts to a contention that the fact finding task undertaken by the Tribunal miscarried as it was based on a "clearly erroneous fact". I have already explained, in relation to Ground 1, how it was that the Tribunal concluded that the applicant had credibility difficulties. The so-called "clearly erroneous fact" which is said to have undermined the views taken as to the credibility of the applicant is unparticularised and no arguable jurisdictional error is demonstrated in the credibility findings of the Tribunal or in the reasons of the primary judge in rejecting this contention. Ground 3 24 By Ground 3, the applicant contends that the Tribunal failed to adhere to its obligations under s 424A of the Act. This was a ground raised for the first time by the applicant in the draft notice of appeal and was not advanced before the primary judge. Despite this, the ability of the applicant to rely on this contention was not opposed. 25 Again, the difficulty is that the applicant does not particularise at all the information it is contended the Tribunal should have put to him, pursuant to s 424A, and a review of the Tribunal Decision does not reveal which of the Tribunal's obligations it is suggested should have been engaged. Given the other arguments raised by the applicant (and doing the best that I can) it seems to me that the core of the complaint is that it was necessary for the Tribunal to provide information to the applicant as to the inconsistencies and concerns it had concerning the applicant's answers to the questions of the Tribunal Member. This, of course, is not material which is required to be disclosed pursuant to s 424A and it follows that this final ground is also without merit. Conclusion 26 Having reviewed the three grounds of appeal notified and the additional ground raised today, the conclusion that I have reached is that there is a want of merit in the proposed appeal and, in these circumstances, the application for extension of time to file the notice of appeal ought to be refused with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 19 May 2017