FEDERAL COURT OF AUSTRALIA ACP16 v Minister for Immigration and Border Protection [2017] FCA 1441 Appeal from: Application for extension of time: ACP16 & Anor v Minister for Immigration & Anor [2017] FCCA 1567 File number: VID 758 of 2017 Judge: RANGIAH J Date of judgment: 17 November 2017 Catchwords: MIGRATION – application for extension of time to appeal from Federal Circuit Court – refusal to grant protection visa – no jurisdictional error – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A) Migration Act 1958 (Cth) s 91R Federal Circuit Court Rules 2011 (Cth) rr 13 and 16 Federal Court Rules 2011 (Cth) r 35 Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Date of hearing: 17 November 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 16 Counsel for the Applicants: The Applicants did not appear Counsel for the First Respondent: Mr A Aleksov Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS VID 758 of 2017 BETWEEN: ACP16 First Applicant ACQ16 Second Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: RANGIAH J DATE OF ORDER: 17 NOVEMBER 2017 THE COURT ORDERS THAT: 1. The application is 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 RANGIAH J: 1 This is an application for an extension of time within which to seek leave to appeal from a decision of the Federal Circuit Court of Australia delivered on 27 March 2017 refusing to reinstate the applicants' application for judicial review under r 16.05(2) of the Federal Circuit Court Rules 2011 (Cth) (FCC Rules). The applicants sought reinstatement because the Federal Circuit Court had dismissed their application for judicial review on 31 January 2017 under r 13.03C of the FCC Rules when the applicants failed to appear at the hearing. 2 When the application before this Court was called for hearing shortly after 11 am today, there was no appearance by, or on behalf of, the applicants. The matter was stood down for 15 minutes in case they were late. The matter was called again at 11.20 am but, again, there was no appearance by, or on behalf of, the applicants. 3 The first respondent has not applied for an order under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth) that the application be dismissed on the basis of the absence of the applicants, but submits that the Court should deal with the application on its merits. Given that the applicants have had an opportunity to file written submissions (and have not taken that opportunity), in my view it is appropriate to proceed to consider the application on its merits. 4 The applicants sought judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm the decision of the first respondent's delegate to refuse to grant the applicants' protection visas. 5 The applicants are citizens of India. They are married to each other. They arrived in Australia on tourist visas in February 2013. In May 2013, they applied for protection visas. Those applications were refused by a delegate of the first respondent in September 2014. 6 In October 2014, the applicants applied to the Tribunal for review of the delegate's decision. On 2 November 2015, the Tribunal wrote to the applicants inviting them to attend a hearing on 11 December 2015 to give oral evidence and present arguments. On 4 December 2015 and 10 December 2015 the Tribunal sent reminder text messages to the applicants, which were sent to numbers provided by the applicants. The applicants did not respond to the messages and did not attend the hearing before the Tribunal on 11 December 2015. On 18 December 2015, the Tribunal affirmed the delegate's decision. 7 The applicants claimed to fear harm from persons who had threatened to kill the first applicant because he had assisted some persons from a lower caste and also claimed to fear harm from persons to whom they owe money. The Tribunal, which did not have the benefit of receiving oral evidence and submissions from the applicants, was not satisfied of their claims. The Tribunal described the material in their visa application as vague and limited. In the absence of the applicants, the Tribunal could not alleviate concerns it held about the first applicant's identity, the Department of Immigration and Border Protection's Document Examination Unit having determined that the passport of the first applicant had been fraudulently altered. The Tribunal also referred to the delegate's decision which recorded the first applicant's limited knowledge of an organisation he claimed to have volunteered with and various discrepancies in his evidence. 8 The grounds before the Federal Circuit Court indicated that the first applicant's passport had been seized on the basis that it was allegedly fraudulent and that he was unable to work in the future or return to India without a passport. The primary judge correctly concluded that these assertions did not provide any basis for demonstrating jurisdictional error on the part of the Tribunal. The primary judge recorded that at the date of the reinstatement application, the applicants contended that the Tribunal had erred in determining their application without receiving oral evidence and submissions from them. 9 The primary judge dismissed that argument on the following basis: 14. On hearing the applicant orally today, the applicant raised the issue that he said he had health difficulties which prevented him from attending the hearing on 11 December 2015. There is no evidence before me of any health difficulties that he had at that time, nor any explanation given as to why he would not have notified the Tribunal in the days following the hearing, if he had been prevented from attending by reason of health difficulties, nor any request for an adjournment. The Tribunal did not make its decision immediately, but waited seven days, which would ordinarily give a person ample opportunity if there were some real reason that prevented them from attending before the Tribunal. 15. In these circumstances, I am not persuaded that the applicant has shown that he was denied procedural fairness in the hearing before the Tribunal. In the absence of any other ground for review or potential ground for review in these proceedings, I am not able to be persuaded that the applicant has an arguable case and, for these reasons, there is no purpose to be served by reinstating the applicant's application. I, therefore, dismiss the present interlocutory application before the Court. 10 The primary judge's decision to refuse to reinstate the applicants' application for judicial review was an interlocutory one because it did not finally determine the applicants' rights or liabilities. Accordingly, they require leave to appeal from that decision by reason of s 24(1A) of the Federal Court of Australia Act 1976 (Cth). In considering whether to grant such leave, the Court must have regard to whether the decision below is attended by sufficient doubt to warrant it being reconsidered, and whether some substantial injustice would result if leave were refused: see, for example, Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. 11 Further, the applicants require an extension of time to seek leave to appeal. Under r 35.13 of the Federal Court Rules, an applicant has 14 days within which to apply for leave to appeal. Considerations such as the explanation for the delay and the merits of the case are relevant to an application for an extension of time. 12 The first respondent's principal contention is that the applicants' proposed grounds of appeal have no prospects of success and that on this basis an extension of time and leave to appeal should be refused. 13 The applicants' proposed grounds of application are as follows: 1. The Hon. failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant's claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 2. The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of AAT. 14 In my opinion, the proposed grounds have no prospect of success. The primary judge carefully considered whether the Tribunal acted unreasonably in proceeding to determine the applicants' application for review without waiting to receive oral evidence and submissions. The primary judge was correct to conclude that the Tribunal did not act unreasonably in circumstances where the applicants had been sent an invitation to appear and the Tribunal sent text messages to the applicants to remind them of the hearing. The applicants did not respond to the Tribunal to request an adjournment, and the Tribunal waited seven days before making its decision. Further, the Tribunal did consider the applicants' claims of persecution and did consider s 91R of the Migration Act 1958 (Cth). Moreover, the primary judge was correct to conclude that the Tribunal considered the claim in a careful way. It is unsurprising the applicants' claim did not succeed, given that they did not appear before the Tribunal. 15 Similarly, the applicants' second ground of appeal has no prospect of success. The primary judge did consider the errors asserted by the applicants. 16 As the applicants are unable to demonstrate any prospect of success in the proposed appeal, their application should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 4 December 2017