FEDERAL COURT OF AUSTRALIA

SZTGW v Minister for Immigration and Border Protection [2014] FCA 943

THE COURT ORDERS THAT:

1.    The Application for extension of time and leave to appeal filed on 16 May 2014 is dismissed.

2.    The Applicant is to 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

1        The Applicant in the present proceeding is a citizen of Sri Lanka. He arrived in Australia as an Irregular Maritime Arrival on 2 July 2012.

2        An application for a Protection Visa (Class XA) under s 36 of the Migration Act 1958 (Cth) made in November 2012 was unsuccessful. In March 2013 a delegate of the Minister notified the Applicant of the refusal of his application and provided detailed reasons and findings for that adverse decision. In April 2013 an application for review was lodged with the Refugee Review Tribunal. The Applicant appeared before the Tribunal in June and July 2013. On 21 August 2013 that Tribunal affirmed the delegate’s decision.

3        On 16 September 2013 the Applicant filed an Application seeking judicial review by the Federal Circuit Court of Australia. An Amended Application was filed on 21 November 2013. The sole ground of review there relied upon was expressed (without alteration) as follows:

1.    The Tribunal failed to address an issue raised squarely on the material before it.

Particulars

The Tribunal made no reference or determination in relation to the material referred to by the delegate at CB 178 which indicated that as a person who had departed Sri Lanka unlawfully the applicant would be prosecuted on his return there and may be held on remand in prison in Negombo until the next sittings of the court there. Consequently the Tribunal made no findings as to the chance of the applicant being persecuted or suffering significant harm as a consequence of such detention.

On 23 April 2014 in an ex tempore judgment a Judge of the Federal Circuit Court dismissed the Amended Application: SZTGW v Minister for Immigration [2014] FCCA 817. Some difficulty was apparently experienced in that Court as to the meaning to be given to the ground of review. That difficulty was apparently overcome and the Federal Circuit Court Judge proceeded to dismiss the ground, reasoning as follows:

[9]    … That information included that, as the applicant had left Sri Lanka unlawfully by boat, on return he might be held on remand at the Negombo prison until the next sitting of court there, after which he would be released on bail pending further action. It is true that that issue was not specifically considered by the Tribunal.

[10]    The Tribunal dealt in detail with the applicant‘s claims as a failed asylum seeker. The Tribunal addressed, as it was required to do, the issues raised by the applicant at the hearing conducted by the Tribunal and the issues raised in a very extensive written submission made on the applicant’s behalf by his legal advisors. I am satisfied that before the Tribunal neither the applicant nor his legal advisors raised the issue of the temporary detention of the applicant at Negombo prison…

The Federal Circuit Court Judge referred to another decision in SZSYP v Minister for Immigration [2014] FCCA 7, where the Judge had resolved a similar claim and continued:

[10]    …In that case, the issue had been specifically raised before the Tribunal and the Tribunal dealt with it. I found that the Tribunal did not err in finding that the applicant was not at risk of significant or, for that matter, serious harm by reason of a likely short period of detention in Negombo prison. Having regard to that decision and the fact that the claim was not raised before the Tribunal in this case, I am not persuaded that the applicant has identified an arguable case of jurisdictional error in his amended application.

“[N]o arguable case of legal error by the Tribunal”, it was concluded, was otherwise apparent.

4        An Application for extension of time and leave to appeal was filed in this Court on 16 May 2014.

5        The Applicant appeared before this Court unrepresented, although he did have the assistance of an interpreter.

6        The Application is to be dismissed.

The requirements to extend time and grant leave

7        An extension of time is required because an application for leave to appeal must be filed within 14 days “after the date on which the judgment was pronounced…”: Federal Court Rules 2011 (Cth), r 35.13(a) (“Federal Court Rules”). More than 14 days elapsed between the Federal Circuit Court’s judgment on 23 April and the filing of the application for leave to appeal on 16 May 2014.

8        Leave to appeal is required because the decision to dismiss the Amended Application is an interlocutory decision. The Amended Application was dismissed by the Federal Circuit Court Judge pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). Rule 44.12(2) expressly provides that to “avoid doubt, a dismissal under paragraph 1(a) is interlocutory”. See also: SZSKO v Minister for Immigration and Border Protection [2014] FCA 105 at [20] per Cowdroy J; SZTTW v Minister for Immigration and Border Protection [2014] FCA 837 at [4] per Beach J.

9        An appeal to this Court from an interlocutory judgment is not to be “brought ... unless the Court or a Judge gives leave to appeal”: Federal Court of Australia Act 1976 (Cth), s 24(1A). In Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139, (2010) 81 ATR 36 at 38 Ryan, Stone and Jagot JJ summarised the circumstances in which leave may be granted as follows:

[4]    In the light of our conclusion that the orders below are interlocutory, it is necessary to consider whether leave to appeal should be granted. That requires application of the test enunciated by another Full Court of this court in DÉcor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397. That test is:

(1)    whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by a Full Court; and

(2)    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

[5]    As indicated by the conjunctive “and,” that test is cumulative. It is not satisfied unless each limb of the test is made out…

See also: Nyoni v Chee Koon Hee (No 2) [2014] FCA 83 at [34] per McKerracher J; SZSKO v Minister for Immigration and Border Protection [2014] FCA 105 at [30] per Cowdroy J. The onus lies on the party seeking leave to appeal: cf. Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56] per Foster J; SZSKO v Minister for Immigration and Border Protection [2014] FCA 105 at [26] per Cowdroy J; SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [7] to [8] per Flick J.

10        Rule 35.14 of the Rules of this Court sets forth the manner in which an application for an extension of time to seek leave to appeal is to be made, including r 35.14(3) which provides as follows:

The application must be accompanied by the following:

(a)    the judgment or order from which leave to appeal is sought;

(b)    the reasons for the judgment or order, if published;

(c)    an affidavit stating:

(i)    briefly but specifically, the facts on which the application relies; and

(ii)    why the application for leave to appeal was not filed within time; and

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

(e)    a statement by the applicant of whether the applicant wants to have the application considered without oral argument.

The discretion to extend time is, it is presently accepted, to be informed by reference to both the reasons set forth in the affidavit as to why the application was not filed within time and by reference to the same considerations as inform the exercise of the discretion to grant leave to appeal.

The basis upon which the orders are sought

11        The Application for extension of time and leave to appeal as filed set forth the Grounds of application (without alteration) as follows:

Grounds of application

1.    I have no work Right. there for no income. I could not afford to here late.

2.    I am looking For Lawyer my time period for my case. I did not get on the time. and nobody helping for me.

3.    and I Being a non speak English. and I have not know my appeal time period.

The Affidavit filed in support of the Application (again without alteration) states as follows:

1.    I am the Applicant.

2.    I AM UNREPRESENTED.

3.    I DO NOT AGREE WITH THE RRT DECISION AND THE FEDERAL CIRCUIT COURT’S JUDGEMENT.

4.    I HAVE STATED THE GROUNDS OF THE REVIEW IN THE FORM 117.

5.    I WILL GIVE MORE DETAILS OF THE GROUNDS AFTER THIS COURT HAS GIVEN ME A PRO-BONO LAWYER BY THIS COURT.

Notwithstanding the statement in this affidavit that “more details” would be provided, the Applicant did not wish to adjourn the hearing before this Court to adduce evidence as to an application for legal aid that had apparently been made subsequent to the April 2014 decision of the Federal Circuit Court. The Applicant indicated that he wished to have his Application determined without any further delay. The Draft Notice of Appeal annexed to the Affidavit sets out the proposed Grounds of Appeal (without alteration) as follows:

Grounds of appeal

1.    The Federal Magistrate Court has not made a finding that the RRT committed jurisdictional error.

2.    The Federal Magistrate Court has not made a finding that the RRT has gone its jurisdiction.

3.    The Federal Magistrate Court has not made a finding that the RRT has not provided natural justice to me as required by the procedural fairness under the Migration Act.

12        These materials, it may be noted, fail to comply with r 35.14(3)(c)(i) and r 36.01 of the Federal Court Rules. It may be assumed for the purposes of r 35.14(3)(c)(ii) that the reason why the application was not filed within time was (at least in part) because the Applicant was not aware of the time constraints imposed by r 35.13(a) and further assumed that the reason for non-compliance with r 36.01 is the lack of any ability to properly draft a notice of appeal. But at least some attempt has been made by the Applicant to comply with the Rules. Any non-compliance with those Rules may presently be left to one side.

13        The basis for concluding that the Application for extension of time and leave to appeal should be dismissed is that the there is no discernible error in the reasons for decision of the Federal Circuit Court Judge. To extend time and grant leave to appeal but to thereafter dismiss the appeal would be an exercise in futility. Even if an extension of time and leave to appeal were granted, the appeal itself does not have sufficient prospects of success to warrant leave being granted: cf. Wang v Botany View Hotel [2014] FCA 730 at [13] per Jagot J.

14        The Applicant, it should be noted, had the assistance of a registered migration agent in the preparation of his claim as made to the delegate of the Minister and before the Refugee Review Tribunal. It may thus be assumed that he has been properly assisted from the outset in the presentation of his claims in the manner which may best have been perceived as maximising his chances of success on the facts of his case. Regrettably for the Applicant, both the delegate and the Tribunal made adverse findings as to his credibility. The Tribunal supported its adverse findings by reference to specific inconsistencies in the account he gave as to various facts. Its findings seem to be soundly based. It was the Applicant’s lack of credibility which considerably dictated the adverse decisions made by the delegate and the Tribunal. Thereafter, the task of discerning jurisdictional error became insurmountable.

15        The decision of the Federal Circuit Court Judge is, with respect, not “attended by sufficient doubt” to warrant either an extension of time within which to appeal or the grant of leave to appeal.

CONCLUSIONS

16        The Application for extension of time and leave to appeal is to be refused.

17        There is no reason why the Applicant should not pay the costs of the Respondent Minister.

THE ORDERS OF THE COURT ARE:

1.    The Application for extension of time and leave to appeal is dismissed.

2.    The Applicant is to pay the costs of the First Respondent.

Associate:

Dated:    2 September 2014