FEDERAL COURT OF AUSTRALIA

SZQZR v Minister for Immigration and Citizenship [2013] FCA 69

THE COURT ORDERS THAT:

1.    The applicant is granted an extension of time in which to file and serve a notice of appeal until the date of this Order.

2.    The draft notice of appeal annexed to the applicant’s affidavit filed on 9 October 2012 is taken to be a notice of appeal filed by the applicant as required by Order 1, but the applicant should file and serve an amended notice of appeal within 28 days hereof.

3.    Costs of the application for extension of time in which to file and serve a notice of appeal be costs in the cause.

4.    A referral certificate be issued under Rule 4.12 in respect of the applicant.

5.    Liberty to apply on the giving of 72 hours notice.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1        The applicant seeks an extension of time to file a notice of appeal in respect of a decision by Cameron FM dated 6 September 2012. The Minister opposes the extension of time.

Background

2        The proceedings before Cameron FM were in the nature of judicial review. They related to the applicant’s unsuccessful application in the Refugee Review Tribunal (RRT) in respect of an earlier decision by the Minister’s delegate refusing the applicant a protection visa. Cameron FM held that the RRT’s decision was not affected by jurisdictional error and that the applicant’s judicial review application should be dismissed.

3        For the purposes of this interlocutory application, it is not necessary to set out the background facts in full. In brief terms they may be summarised as follows (drawing on Cameron FM’s description of those background facts at [1]-[7] of his reasons for judgment).

4        The applicant is a citizen of Columbia. He arrived in Australian on 2 December 2008. On 23 November 2009 he lodged an application for a protection visa with the Department of Immigration and Citizenship, alleging that he feared persecution in Columbia because of his political opinion. He stated in his application that he faced death threats from a paramilitary group in Columbia, known as the Águilas Negras, and that the Columbian authorities would not protect him because he was a member of a political party (known as the Partido Polo Democrático), which was opposed to the Columbian government. He attached to his application a threatening letter dated 20 January 2008 which he said was sent to him by the Águilas Negras and a statutory declaration dated 22 June 2008 in which he declared that his wife had disappeared.

5        He also submitted with his original protection visa application a letter dated 23 December 2009 from a clinical psychologist at a body called Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”). The letter stated that the applicant had been assessed on 17 December 2009 and that he reported and displayed a range of symptoms associated with post-traumatic stress, as well as physical health problems which made him unable to undertake paid employment.

6        The applicant attended a departmental interview on 21 January 2010 in which he made various claims in support of his application. Relevantly, he said that in December 2007 he had received two telephone calls from the Águilas Negras and a visit from one of its members. He said that in January 2008 he received a threatening letter which he gave to the relevant public authority with responsibility for investigating and prosecuting criminal offences in Columbia. He said he did this because he wanted to obtain a protection order. He said that around Easter 2008 he was attacked and his hand was cut by people whom he believed were members of the Águilas Negras. He said that he received threatening phone calls in May and June 2008 and was told to leave the area or he would be killed. He said that he was being singled out for various reasons, including that he had been in charge of security for a Partido Polo Democrático candidate in his home area in an electoral campaign which he said ran from January to June 2008. He then corrected that and said that the campaign was in 2007. He also claimed that his wife had belonged to another political organisation and that she had disappeared in 1992 or 1993 after receiving death threats.

RRT review

7        The applicant attended two hearings before the RRT. At the first of those hearings on 15 April 2010 he produced an unsigned certificate in Spanish on the letterhead of the Polo Democrático Alternativo. The unsigned certificate had been issued on 15 August 2008 and it stated that the applicant had taken part in the organisation’s political movements since February 2002. The applicant explained that he had received the certificate via the internet and that certificates in Columbia were issued without signatures.

8        The applicant made various other claims before the RRT, which included a claim that his wife had disappeared in 1996. He also said that he had worked for a six month period beginning in November 2007 for a mayoral candidate in his home area and that he was in a position to contact the former candidate to obtain confirmation. He said that the mayoral campaign ran from May or June 2007 until the middle of 2008. He said he could not remember when the election was actually held but said it was in the first half of the year. When it was put to him by the RRT that the mayoral elections in Columbia had been held in October 2007 he then said that the campaign had started in 2006.

9        When the applicant appeared at the second hearing before the RRT (which was differently constituted because the previous member’s term expired before the review was completed), he produced a copy of a letter and a translation signed by the former mayoral candidate. The letter purportedly certified that in 2006 and 2007 the applicant had worked as a security manager in a mayoral political campaign in which the letter’s author had stood as the Polo Democrático Alternativo party’s candidate. The author declared that the letter was issued at the applicant’s request on 25 October 2009. The applicant claimed that the letter was dated in 2009 because he had asked for it before he left Columbia and that he had been unable to collect it before he left that country.

10        The applicant also produced a translation of the certificate issued on 15 August 2008 which he had relied on at the first hearing. He also produced a further copy of the certificate, which was now signed, although it was still dated 15 August 2008.

11        The applicant told the RRT at the second hearing that the mayoral elections were held on 31 October 2007 and that the interpreter had made a mistake about the dates at the earlier RRT hearing. He said that he had previously made mistakes with dates and that he had problems remembering details. He added that he was physically attacked during Easter in 2007, not 2008. He said that the inconsistencies in his evidence were caused by his poor memory and psychological problems.

RRT’s decision to refuse protection visa

12        The RRT found that it was not satisfied that the applicant was a person to whom Australia owed protection obligations under the United Nations Convention relating to the Status of Refugees 1951, as amended (the Convention). In very brief terms and focusing on relevant matters, the RRT’s reasons and critical findings were as follows:

(a)    the STARTTS report submitted by the applicant was prepared for the purpose of assessing his ability to engage in paid employment and his need for financial assistance and did not consider the applicant’s history. Accordingly, the RRT considered that the report was relevant only to the task of assessing whether the applicant had the capacity to participate in the RRT hearing. The RRT noted that, although the applicant had referred to his psychological problems and difficulties in remembering dates, he also claimed to have an accurate recall of events. The RRT considered that the applicant understood the questions and the problems with his evidence when put to him. The RRT took into account the psychologist’s report but concluded that the applicant had been able to participate effectively in the hearing;

(b)    the applicant’s claims that he had been involved in a political campaign in Columbia were rejected. The RRT did so on various grounds which included, relevantly, that even when account was taken of the applicant’s psychological problems, he was not “an impressive witness and contradicted himself on matters which were within his personal knowledge and did not depend on his memory”. The RRT found the applicant not to be a witness of truth. Adverse credit findings were also made based on inconsistencies in the applicant’s evidence regarding the timing of the mayoral elections;

(c)    the RRT found that the fact that the later signed copy of the certificate on the letterhead of the Polo Democrático Alternativo was still dated 15 August 2008 suggested that it was a fabrication; and

(d)    it also found that the letter dated 25 October 2009 from the former candidate, which the applicant produced at the second RRT hearing, contradicted his evidence at the earlier hearing (i.e. that he had been unable to contact the former candidate and would need to do so in order to request such a letter). Various other inconsistencies in the applicant’s evidence were also found and relied upon by the RRT.

13        The RRT noted in its reasons at [132] that the applicant had suggested at the second hearing that the RRT member could telephone the “municipal personnel” in Columbia to confirm his involvement in the political campaign leading up to the mayoral election. The RRT said that this was not appropriate because the applicant claimed to fear persecution by the Columbian government. The RRT said that it was not satisfied that if it were to take oral evidence by telephone from Columbia, it could ensure that the telephone call would remain confidential as was said to be required by s 429 of the Migration Act 1958 (the Act).

14        The RRT ultimately concluded that, having regard to its adverse views concerning the applicant’s credibility, it did not accept that he had ever had any significant involvement in politics in Columbia or that he had been threatened by paramilitaries for reasons of his real or imputed political opinion. It concluded that, if the applicant returned to Columbia, it did not accept that there was a real chance that he would be persecuted because of his real or imputed political opinion.

Judicial review proceedings in Federal Magistrates Court

15        In his judicial review application, the applicant complained that the RRT had not afforded him procedural fairness on the basis that:

(a)    it did not investigate and give reasonable weight to his claim of mental illness; and

(b)    it made negative findings as to his credit without reasonably considering his mental health.

16        As the model litigant, the Minister brought two additional issues to Cameron FM’s attention, namely:

(a)    whether the applicant’s mental condition had deprived him of an opportunity to participate in the hearing; and

(b)    whether the RRT’s decision not to take evidence from Columbia by telephone was affected by error.

17        As will emerge below, the second of those two additional matters assumes particular significance in the context of this application for an extension of time.

18        Cameron FM rejected all these four matters. In broad terms, his reasons were as follows.

19        Failure to investigate claim of mental illness: While acknowledging that the RRT is empowered under s 427 to make enquiries, Cameron FM held that there is no general duty for the RRT to do so (citing Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 and Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123). He added that the applicant had not pointed to any obvious enquiry about a critical fact, the existence of which was easily ascertained, which the RRT might have conducted.

20        Failure to give reasonable weight to mental illness: It was a matter for the RRT to decide what weight it should give to any particular evidence. Moreover, his Honour found that the RRT did consider the applicant’s claim to have had a mental illness. Cameron FM found that, in the absence of any additional evidence from the applicant establishing that he had been unable to adequately to present his case to the RRT because of his mental health condition, there was no reason to doubt the RRT’s finding that he had been able to participate effectively in the hearing. Consequently, his Honour held that the RRT had not breached its obligation under s 425 of the Act to provide a real and meaningful invitation to attend a hearing.

21        Failure to consider the applicant’s mental health when making credibility findings: As noted above, his Honour found that the RRT had turned its mind to the applicant’s claim to be suffering mental health problems and ultimately concluded that he had been able to participate effectively in the RRT hearing.

22        Misconstruction of s 429 of the Act: Section 429 of the Act provides as follows:

429    Review to be in private

The hearing of an application for review by the Tribunal must be in private.

As noted above, the Minister drew the Court’s attention below to the RRT’s decision to refuse the applicant’s suggestion that evidence be taken by telephone from persons in Columbia regarding the mayoral elections because, in the context of the applicant’s claims to fear persecution by the Columbian government, the RRT could not ensure “that the telephone call would remain confidential as required by section 429 of the Act”.

23        After considering Emmett FM’s decision in SZQXL v Minister for Immigration and Citizenship [2012] FMCA 361, Cameron FM found at [30] and [31] that that decision was distinguishable because the concern expressed there by Emmett FM related to witnesses maintaining the confidentiality of their evidence after giving evidence and the impact that would have on the privacy of the RRT’s hearing, whereas:

… in this case, I conclude that the Tribunal was not concerned with witnesses keeping their own evidence confidential but, rather, with the confidentiality of the electronic communication itself…

The applicant’s suggestion that government officials be contacted to give evidence by telephone raised, in the context of his claim to fear persecution by the government of Columbia, the possibility of interception or recording and reproduction of those electronic communications such that their content would become known to more than the remote witnesses and those at the Tribunal hearing. If that were to happen, that would compromise the privacy of the Tribunal hearing which s 429 required. For that reason, I conclude that when the Tribunal spoke of being concerned if it were to telephone a witness in Columbia “that the telephone call would [not] remain confidential as required by section 429 of the Act”. It was referring to the requirement of s 429 that the hearing be private, in the sense of being restricted to its proper participants: SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 CLR 486 (emphasis in original).

Procedural History

24        As noted above, Cameron FM’s judgment was delivered on 6 September 2012. Accordingly, in accordance with rule 36.03 of the Federal Court Rules 2011 (2011 FCRs), any notice of appeal should have been filed in this Court within 21 days from that date, i.e. by 27 September 2012.

25        The applicant filed an application for an extension of time on 9 October 2012. It was accompanied by an affidavit filed on the same day. The affidavit did not contain any substantive text, but there were two letters attached, both dated 1 October 2012, from the applicant to the Minister. It is evident from those letters that the applicant was labouring under a misapprehension at the time that the Minister had the power to grant him an extension of time to file a notice of appeal. In the first of those letters, the applicant explained that he was writing to the Minister to request an extension as he was “still awaiting the arrival of the evidence regarding the disappearance of my wife in Columbia”. He further explained that he had taken legal action against the state in Columbia and that he was awaiting receipt of court documents which would corroborate his claim that state authorities were involved in his wife’s disappearance. The applicant also sought the Minister’s help because of his lack of legal knowledge and language issues.

26        The applicant’s second letter to the Minister further requested that the Minister “accept my documents even though they are being handed in past the due date”. He explained that he had been unable to “hand in the application on time” as he was waiting on help from Legal Aid. He said that he had received a letter from Legal Aid to the effect that they could not help him until after 8 October 2012 and that he had received help from the Asylum Seekers Centre, but only after the deadline had passed. The applicant also stated in his letter that another reason for seeking the extension was because he had not received any notification regarding the deadline. He said that he had been waiting for a letter on the topic, but it had been sent to a different address and he only received it when it was too late. He attached a form filed in the Federal Magistrates Court on 6 March 2012 advising of his change of address for service. He also said that he had been sick for a week and had had an operation. He enclosed a doctor’s certificate dated 21 September 2012, certifying that the applicant was unfit to resume work until 22 September 2012.

27        The affidavit was also accompanied by a draft notice of appeal, also filed on 9 October 2012. Under the “Grounds of appeal”, the applicant simply stated: “I have operration” (sic). Under the heading “Orders sought”, he simply wrote “extention of time” (sic).

Summary of relevant principles

28        Rule 36.05 of the Federal Court Rules 2011 specifies the following requirements if a party wants to apply for an extension of time:

(a)    an application in accordance with Form 67;

(b)    specification that the application may be made during or after the 21 day period as specified in rule 36.03; and

(c)    the application must be accompanied by each of the following:

    the judgment or orders from which the appeal is to be brought;

    the reasons for the judgment or orders, if published;

    an affidavit stating briefly but specifically the facts on which the application relies and an explanation why the notice of appeal was not filed within time; and

    a draft notice of appeal that complies with rules 36.01(1) and (2).

29        The principles guiding the exercise of the Court’s discretion whether or not to grant an extension of time for the bringing of an appeal are reasonably well established. The view has generally been taken that the principles set out in Wilcox J’s decision in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (dealing with an extension of time to bring judicial review proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) apply to other similar applications beyond that Act. For example, the Full Court held in Parker v The Queen [2002] FCAFC 133 at [6] that those principles apply in the criminal jurisdiction, although their Honours also noted there that a more lenient approach might be warranted where the liberty of an individual is at stake.

30        Some of the relevant principles are helpfully set out by Katzmann J in Dunlop v Fishburn (No. 3) [2012] FCA 315 at [9] and [10]:

The Federal Court Rules 2011 (Cth) (“the Rules”) retain the 21 day time limit for filing a notice of appeal and the discretion given to the Court in the former Rules to extend that period: r 36.03. The discretion is wide. It is constrained only by the interests of justice and the subject-matter and purpose of the legislation. Section 37M(1) of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) provides that the overarching purpose of the civil procedure provisions of the Act and the Rules is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. That purpose includes the objective of disposing of all proceedings in a timely manner: FCA Act, s 37M(2). Section 37M(3) requires the Court to interpret and apply the Rules and exercise any power conferred by them in the way that best promotes the overarching purpose. Consequently, the discretion conferred by r 36.03 is to be exercised in that way.

The requirement in the former Rules (O 52 r 15(2)) that an applicant show “special reasons” has been removed. Despite the absence of a requirement for special reasons (which, in any event, only meant something out of the ordinary (Jess v Scott (1986) 12 FCR 187)), it seems to me that the considerations guiding the exercise of the Court’s discretion set out by the Full Court in Parker v The Queen [2002] FCAFC 133 at [6] continue to apply:

(a)    Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored;

(b)    The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

(c)    Other action taken by the applicant to challenge the decision is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

(d)    Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension but the mere absence of prejudice will not justify the grant of an extension;

(e)    The merits of the appeal are to be taken into account.

31        Her Honour’s judgment provides useful guidance in the exercise of the judicial discretion on this matter, but I do not consider that her Honour was intending to provide an exhaustive list of the relevant considerations. In my view, depending upon the circumstances of a particular case, additional relevant considerations may arise, including the length of the relevant delay in bringing the proceedings, as well as the nature of the rights and interests the subject of the proceedings. In my view, this latter consideration entitles the Court to take into account and give weight to the fact that the proceedings here concern a claim to be accorded refugee status, with the serious implications for the individual concerned if their claim is rejected invalidly and they are returned to a country where they may face persecution or harm.

Consideration

32        As noted above, the Minister opposes an extension of time. He does so on the following broad grounds:

(a)    failure to provide a satisfactory explanation for the delay in seeking leave to appeal;

(b)    lack of merit in the proposed ground of appeal; and

(c)    otherwise, the absence of any apparent jurisdictional error in the RRT’s decision, nor any error in the Federal Magistrate’s decision.

33        For the following reasons, I consider that this is an appropriate case to grant an extension of time to appeal.

34        First, due allowance should be made for the fact that the applicant is self-represented and that he has difficulties with the English language (some of the access to justice issues raised by unrepresented litigants are helpfully discussed by Flick J in SZQPE v Minister for Immigration and Citizenship (2012) 205 FCR 437 at [13] to [26]). These handicaps are only too apparent in the documents filed by the applicant in the Court on 9 October 2012. The contents of his draft notice of appeal as described above clearly reveal that he approached that document on the misconceived basis that it related only to his application for an extension of time.

35        Of course it is not for the Court to formulate the applicant’s grounds of appeal for him (see SZQPE at [23]). But I consider that it is appropriate in the circumstances here to proceed on the basis that the applicant intends to challenge each of the grounds upon which the Federal Magistrate dismissed his judicial review application. Those four grounds are set out above in my outline of the learned Federal Magistrate’s reasons.

36        Secondly, I do not accept the Minister’s argument that there has been no adequate explanation for the applicant’s delay. The letters to the Minister attached to the applicant’s affidavit adequately explain his delay. Those letters were written only a short time after 27 September 2012, by which time the applicant ought to have filed and served his notice of appeal in accordance with Rule 36.03. In the mistaken belief that the Minister had the authority to extend time, the applicant wrote and explained to him the reasons for his delay. They are set out in [24] and [25] above.

37        On the issue of delay, it is also relevant to note that the applicant explained that he had approached Legal Aid and was told that they were unable to assist until after 8 October; he then “received help” from the Asylum Seekers Centre, but that only occurred after the deadline. It is not as though the applicant was doing nothing to advance the matter.

38        Moreover, the applicant’s delay is not of great magnitude, nor does the Minister complain of any prejudice occasioned by the delay. As noted above, he wrote to the Minister on 1 October 2012 about the delay and he filed documents in this Court on 9 October 2012 seeking an extension of time. The proceedings were therefore commenced barely two weeks after the expiration of the 21 day period for bringing appeal proceedings.

39        Thirdly, I do not share the Minister’s concern that the medical certificate only excuses the applicant from work for one day, being 21 September 2012. The more important point is that the Minister does not dispute the applicant’s claim which is set out in his second letter to the Minister that he had been sick for a week and had had an operation.

40        Fourthly, I also take into account the fact that the applicant is claiming to be a refugee and says he will be persecuted if he is returned to Columbia. These matters reflect the importance in an appropriate case such as this of ensuring that decisions which have the effect of denying a person status as a refugee have been arrived at according to appropriate legal principles.

41        Finally, I cannot accept the Minister’s submission that there is no utility in granting an extension of time on the basis that there is no merit in the proposed appeal. It is true that this contention was directed to the applicant’s draft notice of appeal and the applicant’s handwritten statement therein that his ground of appeal was simply that he had had an operation. But, as pointed out above, that statement was plainly directed to his application for an extension of time. In circumstances where the applicant is not represented, I consider it reasonable to proceed on the basis that his intention at this stage is to appeal against each of the grounds upon which the Federal Magistrate rejected his judicial review application.

42        It is sufficient that one of those grounds is arguable for the appeal to have some utility. In my view, that is the case here with particular reference to the Federal Magistrate’s reasons for concluding that there was no misconstruction of s 429 of the Act. In my opinion, the applicant has an arguable case that the learned Federal Magistrate misconstrued the nature and scope of s 429 in finding that the reference in that provision to the requirement that a hearing of a review application be “in private” simply means that the hearing has to be “restricted to its proper participants” and that is what the RRT meant in [132] of its reasons. Those propositions are plainly contestable, particularly having regard to the observations of the High Court in SZAYW v Minister for Immigration Multicultural and Indigenous Affairs (2006) 230 CLR 486 at [25], including the High Court’s acceptance of the proposition that the requirement that a hearing be “in private” is not inconsistent with the participation of witnesses.

43        Further, in my opinion, the proper construction of s 429 and whether that provision was correctly applied by the RRT gives rise to some related questions. They include the interrelationship between ss 424, 426 and 429 of the Act. It is to be noted, for example, that the RRT’s power under s 424 to seek any information that it considers relevant relates to the RRT’s conduct of the review (which is the subject of s 424), which appears to be a wider concept than the hearing of an application for review (which is the subject of the power in s 429). It appears that the RRT simply treated the applicant’s suggestion as relating to s 429 alone, and no consideration was given by the RRT to the potential relevance of s 424 (or perhaps s 426) to his suggestion. The Federal Magistrate’s analysis also gives rise to some other legal issues, including the significance of the fact that the legislation expressly provides in s 424(2) for the Tribunal to use the telephone in inviting a person to give information. Some significance may also attach to the fact that s 424 is not explicitly or directly the subject of the constraint imposed by s 429. Further, a real question may arise as to the relevance of any distinction in this context between the giving of information and the giving of evidence.

44        Having regard to the significance the RRT attached to the deficiencies and inconsistencies in the applicant’s evidence concerning his claimed involvement in the mayoral elections, the RRT’s rejection of his suggestion that the member telephone relevant municipal personnel in Columbia to confirm his evidence is obviously an important matter going to the heart of the applicant’s case. At this interlocutory stage it is both unnecessary and inappropriate for me to express concluded views on the issues raised above concerning s 429 and the other potentially relevant provisions. The views I have expressed above are entirely tentative. As matters stand at present, I consider that there may be utility in permitting the applicant to run his case.

45        For all these reasons, I consider that there is utility in granting the applicant an extension of time. The applicant should promptly attend to preparing an amended notice of appeal which clearly states his grounds of appeal.

46        I also consider that this is an appropriate case for the Court to make a referral for legal assistance under Rule 4.12 of the 2011 FCRs. It is evident that the applicant has limited financial means and his own attempts to obtain legal assistance have met with limited, if any, success. I also consider that the questions relating to the proper construction and application of s 429 of the Act are complex and require legal assistance. The referral should include the provision of legal advice and assistance to the applicant, including the drafting of an amended notice of appeal, as well as appearing at the final hearing (and any other interlocutory steps requiring the involvement of a legal practitioner). Although I propose to make a referral, the applicant should understand that there is no guarantee that a pro bono lawyer will accept the brief.

47        Accordingly, I make the following orders:

1.    The applicant is granted an extension of time in which to file and serve a notice of appeal until the date of this Order.

2.    The draft notice of appeal annexed to the applicant’s affidavit filed on 9 October 2012 is taken to be a notice of appeal filed by the applicant as required by Order 1, but the applicant should file and serve an amended notice of appeal within 28 days hereof.

3.    Costs of the application for extension of time in which to file and serve a notice of appeal be costs in the cause.

4.    A referral certificate be issued under Rule 4.12 in respect of the applicant.

5.    Liberty to apply on the giving of 72 hours notice.

Associate:

Dated:    12 February 2013