Federal Court of Australia EDT16 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 896 Appeal from: EDT16 v Minister for Immigration and Border Protection [2022] FedCFamC2G 230 File number: VID 352 of 2022 Judgment of: MOSHINSKY J Date of judgment: 14 August 2024 Catchwords: MIGRATION – application for extension of time to appeal – protection visa – where the applicant was self-represented in the Federal Circuit and Family Court of Australia (Division 2) – where the application for an extension of time was filed 49 days out of time – whether the proposed appeal had merit – held: application dismissed Legislation: Migration Act 1958 (Cth), s 36 Federal Court Rules 2011, r 36.03 Cases cited: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 29 Date of hearing: 30 July 2024 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms K Whittemore, Sparke Helmore Lawyers Solicitor for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS VID 352 of 2022 BETWEEN: EDT16 Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: MOSHINSKY J DATE OF ORDER: 14 AUGUST 2024 THE COURT ORDERS THAT: 1. The name of the first respondent be amended to 'Minister for Immigration, Citizenship and Multicultural Affairs'. 2. The applicant's application for an extension of time dated 22 June 2022 be dismissed. 3. The applicant pay the first respondent's costs of the application, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MOSHINSKY J: Introduction 1 The applicant, a citizen of Pakistan, seeks an extension of time to appeal from a judgment and orders of the Federal Circuit and Family Court of Australia (Division 2) (the Federal Circuit Court) dated 6 April 2022: EDT16 v Minister for Immigration and Border Protection [2022] FedCFamC2G 230. 2 The time for filing a notice of appeal was 28 days from the date on which the judgment appealed from was pronounced or the order was made: see r 36.03 of the Federal Court Rules 2011. Accordingly, in the present case, the applicant had until 4 May 2022 to file a notice of appeal. The applicant did not do so, but filed an application for an extension of time on 22 June 2022, which was 49 days after the last day to file a notice of appeal under the rules. 3 The application for an extension of time is supported by an affidavit of the applicant that was filed on 22 June 2022. The applicant, who was unrepresented in the proceeding in the Federal Circuit Court and is unrepresented in the proceeding in this Court, stated in the affidavit that he thought that he had 35 days in which to lodge an appeal, but now realises that he was wrong. He stated that the reason for the delay was his lack of knowledge. 4 The application was heard on 30 July 2024. The applicant appeared for himself, with the assistance of an Urdu interpreter. The applicant did not file an outline of submissions before the hearing. He made some brief oral submissions. The first respondent (the Minister) was represented by a solicitor, who provided an outline of submissions in advance of the hearing. Pursuant to Court directions, the Minister filed an electronic Bundle of Documents, including the Court Book from the proceeding in the Federal Circuit Court. 5 For the reasons that follow, I have decided that the application for an extension of time should be dismissed. In summary, in my view, the proposed appeal lacks merit. Accordingly, it would not be appropriate to extent the time to appeal. Background 6 On 18 February 2012, the applicant arrived in Australia bearing a Pakistani passport and holding a class TU subclass 572 student visa. He was enrolled at a private tertiary college in Perth. 7 On 13 March 2014, the applicant lodged an application for a Protection (Class XA) visa. In summary, the applicant presented the following claims in his application (based on the summary in the reasons for judgment of the primary judge at [12]): (a) he is a Sunni Muslim from Rawalpindi, Pakistan; (b) before coming to Australia, he was involved in some family issues pertaining to the distribution of his grandparents' property; he was left a 50% share of his parents' property, a greater proportion than was to be left to his brothers; (c) the applicant believes that his greedy relatives did not want him to obtain any share in the property; (d) he believes that his life would be in danger if he was to return as a result of this dispute; the applicant claimed that his brothers made a deal with his extended relatives who were involved with an extremist political party to kill him, and he allegedly believes that he would be killed upon his return to Pakistan; (e) the stress and tension of this dispute caused his parents to die; and (f) he saved his life by coming to Australia; he fears that he cannot return to Pakistan because he will be killed over his share in the property. 8 On 19 August 2015, a delegate of the Minister refused to grant the applicant the Protection (Class XA) visa. 9 On 10 September 2015, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for merits review of the delegate's decision. 10 On 11 September 2015, the Tribunal wrote to the applicant acknowledging his application for review. The correspondence invited the applicant to provide material or written arguments for consideration by the Tribunal as soon as possible. 11 On 27 September 2016, the Tribunal invited the applicant to attend a hearing, to give evidence and present arguments. The hearing was set down for 17 November 2016. The notification of the hearing also attached an information sheet setting out important information about the hearing. 12 The applicant applied for an adjournment of the hearing on the basis that he was too ill to attend. On 18 November 2016, the Tribunal informed the applicant that his request for a postponement of the hearing had been granted, and the hearing was rescheduled to 25 November 2016. 13 On 25 November 2016, a hearing took place before the Tribunal. The applicant attended the hearing and was assisted by an Urdu interpreter. 14 On 28 November 2016, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa, and provided reasons for its decision. In summary, the Tribunal did not accept the applicant's claims regarding the property dispute and the problems he claimed to have experienced as a result of that dispute. The Tribunal considered that there were inconsistencies in the applicant's evidence. The Tribunal made a number of adverse credibility findings in relation to the applicant. The Tribunal concluded that the applicant did not face a real chance of persecution now or in the foreseeable future if he were to return to Pakistan. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Convention relating to the Status of Refugees (1951). It followed that the applicant did not satisfy the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth). The Tribunal was also not satisfied that the applicant met the complementary protection criteria in s 36(2)(aa) of that Act. The judgment of the primary judge 15 The applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. In his application for review, the applicant set out the following grounds of review (as set out in the primary judge's reasons at [25]): (1) I came to Australia in 2012. (2) I applied for protection visa, which was refused on 19/08/2015. (3) I applied in AAT for the review of my application and they invited me to comment on my case on 28/11/2016. (4) As I was keen to know my decision and, I attended the hearing on 28/11/2016. (5) Tribunal and department of immigration refused my visa as according to them, the criteria to grant the protection visa is not met. (6) For me it was a total shock as I was fully confident for my case as that was genuine. (7) During the hearing, I gave all the supporting evidences in support of my case and tribunal agree that the circumstances in which the grounds for refusal arose are not the fault of the applicant and beyond our control. (8) I was shocked to see the behaviour of the Member as she was not listening to what I want to say and provide in support of my case. (9) AAT finished my hearing in 1 hour and took no evidence from me in support of my case. (10) I requested for extension of time but no one gives weigh to my request and gave the bias decision for my genuine case. (11) Tribunal did not considered my circumstances in Australia and concluded that I don't satisfy the criteria if grant of protection visa without giving time and taking any additional evidences. (12) I am not satisfied with the decision made by Administrative Appeals Tribunal and Department of Immigration and Border protection as there ground to refuse my visa are not appropriate and lack detail. (13) They did not provided any knowledge and time that can be helpful in support of my application. (14) So, I want to apply in federal circuit court for the right review of my application. 16 On 19 November 2021, a hearing took place before the primary judge. The applicant appeared for himself, with the assistance of an Urdu interpreter. 17 On 6 April 2022, the primary judge published reasons for judgment and made orders that the application be dismissed and that the applicant pay the Minister's costs. The primary judge outlined the background to the application for judicial review at [4]-[18] of his reasons. At [19]-[24], the primary judge summarised the reasons of the Tribunal. At [25]-[43], the primary judge set out the applicant's grounds of review, discussed procedural aspects of the review, and summarised the submissions made by the applicant and the Minister. The primary judge noted, at [37], a submission by the Minister, with which the primary judge expressed his agreement, that grounds 1 to 7, 12 and 14 generally outlined the procedural history of the matter, indicated the applicant's dissatisfaction with the Tribunal's findings, and otherwise constituted a request for impermissible merits review. 18 The primary judge's reasoning in relation to the applicant's appeal grounds was set out at [44]-[59] of his reasons. At [44], his Honour stated that, insofar as the applicant sought a review of the decision of the delegate, that decision fell beyond the jurisdiction of this Court. The primary judge's reasoning in relation to the grounds of review was as follows (with the text of the footnotes inserted in square brackets): 46 I do not accept the applicant's submission that he was denied procedural fairness, either because the Tribunal was biased or the Tribunal did not keep an open mind to his claims. There is no evidence before the Court to sustain that submission. 47 As the Minister pointed out, bias is a very serious claim which must be firmly and distinctly made and clearly proven [Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531]. There is no evidence to suggest that the Tribunal had a pre-existing state of mind which prevented a proper evaluation of the material relevant to the application. 48 If the applicant is asserting apprehended bias, the test is well known. He must demonstrate that there would be a reasonable apprehension on the part of a "hypothetical fair-minded layperson who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias", that the Tribunal might not bring an impartial mind to the resolution of the question to be decided. I see nothing in the evidence which would give rise to such an apprehension and the applicant's subjective opinion that he "felt a bit of racist element come through" or that the Tribunal member was "rude" is not particularised. 49 I accept the Minister's submission that no inference of bias or pre-judgement can be drawn from the mere fact of adverse findings in the Tribunal's reasons [VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]]. In my view, when read fairly and as a whole, the decision of the Tribunal reveals that the member did impartially engage with each of the claims raised by the applicant and the evidence he gave at the hearing. Grounds 8 and 10 cannot succeed. 50 I also reject the applicant's submission that he was not given an adequate opportunity to be heard or to present the evidence or arguments he wished to advance in support of his claims. A hearing was held in relation to the application. On 27 September 2016 the applicant was sent an invitation to attend that hearing. The correspondence sent to the applicant provided details on how to provide documentary evidence to the Tribunal and the applicant was on notice, from the delegate's decision, about the determinative issues in the case. That included him being on notice as to the genuineness of documents he sought to rely on in relation to the property dispute in Pakistan. 51 The applicant was given an opportunity to address these issues at the hearing. The hearing lasted for a little over one hour. Contrary to the applicant's submissions, there is no evidence before the Court to support his assertion that he sought more time from the Tribunal or that he was refused more time to provide information. 52 The applicant is plainly aggrieved that the Tribunal failed to give his documents the weight he believed should have been accorded to them. But assessment of the evidence is a matter for the Tribunal. The Tribunal plainly had regard to the documents provided by the applicant, namely his father's will and a police report, however with reference to country information on endemic document fraud, the Tribunal afforded the documents very little weight [Tribunal decision at [25]]. The documents were not rejected nor ignored and the Tribunal gave cogent reasons for why it gave them the weight it did. 53 It should also be said, that the Tribunal's concerns about authenticity of the documents was only one element of its concerns about the genuineness of the applicant's claims. A much broader suite of concerns about the applicant's claims were raised with him and he was afforded an opportunity to address those matters. Indeed, it was that opportunity which gave rise to many of the inconsistencies between the evidence given by the applicant at the Tribunal hearing and evidence given by him previously. 54 The Tribunal's decision record makes clear that the applicant gave oral evidence in support of his application. This is plain from a fair reading of paragraphs 17 to 22 of the decision. Accordingly, I dismiss grounds 9 and 13 of the application for review. 55 The allegation that the Tribunal's failure to allow the applicant an extension of time was "unreasonable", is based on the premise that the applicant sought an adjournment or postponement of the proceedings. I see no evidence that that was the case. 56 The Tribunal undoubtedly has power to grant an adjournment as a matter of discretion under s 427 of the Act. There may be circumstances where that discretion is exercised unreasonably where it "lacks an evident and intelligible justification" [Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [23], [76]]. In order to determine whether the exercise of discretion can be considered to be unreasonable, the Court must conduct an evaluation of the evidence including any inferences which may be drawn from that evidence [Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [41]]. 57 However, based on the evidence before the Court, I am not satisfied that the applicant made a request for an extension of time or sought an adjournment of the proceedings. He certainly did make a request of that kind on 17 November 2016 due to illness and on that occasion the Tribunal agreed to postpone the hearing and invited him to attend a rescheduled hearing. The Tribunal record of the hearing on 25 November 2016 does not indicate that the Tribunal was requested for more time or for a further adjournment. 58 Grounds 10 and 11 must fail. The Tribunal was not required to consider whether to exercise its discretion under s 427 of the Act and the premise of the applicant's complaint is not made out. 59 As stated earlier, the remaining grounds of the application are in the nature of narration and are not proper grounds for judicial review. 19 The primary judge therefore concluded that the applicant had not demonstrated jurisdictional error in the Tribunal's decision. The application for an extension of time 20 As noted above, on 22 June 2022, the applicant filed an application for an extension of time to appeal from the judgment and orders of the Federal Circuit Court. The application is supported by an affidavit, the substance of which is set out at [3] above. The applicant has provided a draft notice of appeal that contains a single ground as follows: The judgment was not fair, [as] it did not give weight to my arguments and evidence provided. Consideration 21 The principles applicable to an application for an extension of time are well established. In considering an application for an extension of time, the relevant considerations include the length of the delay, the applicant's explanation for the delay, any prejudice to the respondent and the substantive merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 348-349; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20] per Perram, Farrell and Perry JJ. 22 Here, the applicant has provided an explanation for the delay (see [3] above). Although his understanding that the period of time to appeal was 35 days does not provide a complete explanation for the delay, in circumstances where the applicant did not have legal representation at the relevant time I am prepared to proceed on the basis that he has provided a sufficient explanation for the delay. 23 In my view, the real issue in the present case is whether the proposed appeal has any merit. For the reasons that follow, in my view, the appeal lacks merit. 24 In circumstances where the applicant is unrepresented, it is understandable that his proposed ground of appeal may not be properly formulated. The applicant contends that the judgment was unfair on the basis that the primary judge did not give weight to the applicant's arguments and evidence. 25 The reasons for judgment of the primary judge make clear that he carefully considered all of the grounds raised by the applicant. His Honour gave detailed reasons why those grounds did not establish jurisdictional error by the Tribunal (this being necessary to set aside the Tribunal's decision). 26 If and to the extent that the applicant contends that the primary judge erred in his reasoning or conclusions with respect to the applicant's grounds of review, there is, in my view, no arguable basis for such a contention. The primary judge's reasons, set out above, are (in my respectful opinion) clear and logical and support the conclusions that he reached with respect to each ground of review. In my respectful opinion, there is no discernible error in the reasoning or conclusions of the primary judge in relation to the applicant's grounds of review. 27 For these reasons, I conclude that the proposed appeal does not have any substantive merit. Accordingly, the application for an extension of time is to be dismissed. 28 It is unnecessary to consider the question of prejudice to the Minister (but it is not contended by the Minister that he would suffer any prejudice beyond the cost of responding to an unmeritorious application and the public interest in the finality of decision-making). Conclusion 29 For the above reasons, the application for an extension of time is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore also make an order that the applicant pay the Minister's costs of the application. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. Associate: Dated: 14 August 2024