FEDERAL COURT OF AUSTRALIA

SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298

THE COURT ORDERS THAT:

1.    The application for an extension of time to file a notice of appeal, dated 23 July 2014, is refused.

2.    The applicant pay the first respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

INTRODUCTION AND SUMMARY

1        The applicant applies for an extension of time in which to appeal from orders of the Federal Circuit Court made on 26 March 2014, where the Court dismissed his application to review the decision of the Refugee Review Tribunal to refuse him a protection visa. He requires an extension of time of approximately three months.

2        On 14 November 2014, at the hearing of his application for an extension of time in which to seek leave to appeal, a potential issue about procedural fairness arose. After the appellant gave oral evidence and was cross-examined, the Court made some directions to facilitate the adducing of further evidence on this issue, also giving the Minister an opportunity to respond both by evidence and submission. The applicant did not comply with those directions and the further affidavit he filed about the reason for his non-compliance has led me to find that he has given an inconsistent and unreliable account of events to this Court, such that the potential issue of procedural fairness has insufficient merit to warrant any further consideration of the extension of time application, in circumstances where there is no other reason to give such an extension.

3        For the reasons which follow, the application for an extension of time to appeal the decision of the Federal Circuit Court is refused.

BACKGROUND

4        The applicant is a citizen of India who first arrived in Australia as a visitor in December 2011. He applied for a protection (Class XA) visa on 7 February 2012. In support of his application for protection, the applicant claimed that he was a member of the Youth Congress of a particular state in India and had been involved in the activities of the Congress Party, including working on a local election campaign. The applicant claimed that, although the Congress Party lost the last election, it had risen in popularity because of his personal connection with local people. He claims that this caused him to be targeted by members of the ruling party, the Communist Party of India (Marxist) (CPI(M)), who, he says, were worried that his connections with the local people through his work with the Youth Congress could impact on the CPI(M)’s success at the next election, affecting their capacity to make money illegally, in particular through corruption. I do not propose to identify the Indian state the applicant claimed to come from.

5        The applicant claimed that, one night in August 2011, he was attacked by members of the CPI(M). He says he tried to complain to the police, who would not take his case and instead threatened him. The applicant claimed he also tried to raise the matter with higher authorities in his party who could not assist him. The applicant claimed that attacks against Congress Party members had increased and, if he is returned to India, members of the CPI(M) party will kill him.

6        On 30 May 2012 a delegate of the Minister refused to grant the visa under s 65 of the Migration Act 1958 (Cth) (the Migration Act). The applicant applied for review of the delegate’s decision to the Refugee Review Tribunal on 4 July 2012.

THE TRIBUNAL’S DECISION

7        It appears the applicant has been self-represented throughout the decision-making process about his protection visa application. The applicant was assisted by an interpreter in the Bengali language at the Tribunal, before the Federal Circuit Court and before me on this application for an extension of time.

8        At the Tribunal, he appeared and gave oral evidence at a hearing on 13 December 2012. The Tribunal invited the applicant to address the following matters:

•    How the application was filled out;

•    His education in India;

•    How he got involved in politics and the nature of his involvement;

•    The reasons he is seeking protection in Australia;

•    When and how he became aware of protection visas in Australia;

•    Why he did not apply for a protection visa as soon as he arrived in Australia; and

•    Relocating in India.

9        The reasons of the Tribunal also indicate that it allowed the applicant two weeks to provide photographs demonstrating his involvement in political activities in India, which the Tribunal would consider prior to making a decision. The Tribunal’s reasons record that nothing was provided by the applicant to the Tribunal in response to this invitation.

10        The applicant had, however, provided to the Tribunal copies of his Indian Youth Congress Card, a medical report, and an undated certification of his membership of his local Youth Congress provided by the President of the Committee. Some of his contentions on judicial review related to the way the Tribunal dealt with these documents.

11        On 27 June 2013, the Tribunal affirmed the decision of the delegate to refuse the applicant a protection visa. It found there were inconsistencies in the applicant’s oral evidence which led the Tribunal to find that the applicant was not a credible witness. The Tribunal’s reasons state (at [40]-[46]):

The applicant’s Indian Youth Congress membership card states: “validity: 28 February 2011”. As recorded in the decision record the applicant provided to the Tribunal, he stated to the delegate that he did not renew his membership after he went into hiding. Yet he was elected “G .S” in 2011 according to the certification by the President of the [redacted] Youth Congress. The applicant claims he was attacked in August and September 2011, that is when he was not a member, and when he claimed he had returned to his home town after hiding in various locations in India from January 2011.

The Tribunal finds the applicant’s account at the hearing of the first time he was attacked in August 2011, inconsistent with his claims to have been in hiding before then in [redacted] for 50 days, where he was found, and then somewhere between [redacted] and [redacted], states further north than [redacted] in the north-east of India. He told the Tribunal that his father does agricultural work and has a small grocery shop. In the evening, his father used to go and sit in that shop. At that time, the applicant occasionally used to help his father. On that night about midnight, he had just closed the shop and was returning home alone. He was attacked by five or six masked people on bikes who threatened him to quit the party and that they would kill him. To be assisting his father in his business and then setting off to his home from that place of business, is inconsistent with his claims to have to hide from those pursuing him.

The applicant claimed that he was undertaking his bachelor degree from 2006 until 2010 in [redacted]. He claimed that he paid six months’ rent in advance for his accommodation in [redacted] although he claimed that he only went to college for a total of 1.5 months before the end of the year and for three months at the beginning of the academic year, that is a total of four and a half months and went home and studied, to save his father money by not incurring the expense of food, pocket money and local transport in [redacted]. The Tribunal found that evidence inconsistent because he was paying rent for periods he was not there. When the Tribunal put to the applicant that it would have been better to stay in [redacted] for the six months, the applicant said that he had a homesickness problem. The Tribunal finds this inconsistent with his evidence that he had studied in [redacted] at a boarding school from the age of 13 and used to go home once a year for holidays from January to April and sometimes went home for Divali in October or November for 30 days. [His study location], according to the applicant, is four days’ travel by train or four to five hours flight from the applicant’s home in [redacted], which is in the state of [redacted] in the north-east of India.

In the application, the applicant claimed that his occupation or profession before he came to Australia was looking after his father’s business. That is inconsistent with his claims to have been in hiding from January 2011 and fleeing India to avoid being attacked and killed. In his application he claimed that he was unemployed in Australia and in response to the request to give details of how he was financially supporting himself, he wrote “from my father”. Those claims are inconsistent with his evidence during the hearing that his father had sold his house to finance the applicant’s trip to Australia and had nothing left and that the applicant was financing himself in Australia because his visa allowed him to work full time.

The Tribunal also finds his evidence about members of his family being tortured and constantly threatened inconsistent with their continuing to live in their home until his father sold it before the applicant came to Australia and then continuing to live in their hometown in a rented house. In making that finding, the Tribunal has taken into account the applicant’s evidence at the hearing that they are living with a family and that is why they are protected, there are people around them. If they can be protected in that fashion, the Tribunal does not understand why he could not be so protected.

The Tribunal found the applicant’s evidence about hiding in India from January 2011 in [redacted] and being found after 50 days, then hiding in [redacted] where he found language difficulties and a lack of co-operation, then [redacted] where he worked for two and a half months, and then [redacted] for 45 days, then [redacted] for two months and [redacted] for one month before returning home, implausible and inconsistent with his travelling to [redacted] from 18 February to 18 March 2011 and to [redacted] from 28 July to 4 August 2011, “to visit”, as recorded in his application.

The Tribunal finds that the applicant is not a credible witness, because of the inconsistencies in his evidence referred to above.

12        The Tribunal also considered but gave little weight to the additional documents provided to the Tribunal by the applicant. The medical report, the Tribunal found, was difficult to read such that it was unclear what the reported injury was, and the document was silent as to the cause of the injury. The Tribunal also gave little weight to the letter from the President of the relevant Youth Congress as there were inconsistencies between statements made in the letter and some of the applicant’s oral evidence. The Tribunal was not satisfied the applicant ever held certain positions within the party, worked for the party or was ever an active member of the Youth Congress, or would be active in Youth Congress if he returned to India. Consequently, the Tribunal was not satisfied the applicant or any member of his family had ever been threatened or harmed or would be threatened or harmed by the CPI(M), were he to return to India.

REVIEW IN THE FEDERAL CIRCUIT COURT

13        On 26 July 2013, the applicant applied for judicial review of the Tribunal’s decision in the Federal Circuit Court. This application was within the time provided for review in the Migration Act. The reasons of the Federal Circuit Court record five grounds of review:

(1)That the Tribunal “erred in assessing [the applicant’s] situation in relation to ‘persecution’ and ‘fear of life’”;

(2)That the Tribunal “effectively misconstrued the political involvement in which [the applicant] was persecuted by the ruling CPI(M)”;

(3)That the Tribunal “failed to assess the political situation as to CPI(M)’s aggression towards Congress member to establish exclusive political supremacy in the State [redacted]”;

(4)That the Tribunal “erred to differentiate the justice system in Federal and State arena to protect Citizens as to their political and cultural association”; and

(5)That the Tribunal erred by not assessing the applicant’s current situation as to his “right to life” and “Australia’s protection obligations under the Refugees Convention”.

14        On 26 March 2014, after hearing from the applicant and the Minister’s legal representative, the Federal Circuit Court judge dismissed the judicial review application. Her Honour’s principal conclusion was that in all the applicant’s oral contentions, he “consistently took issue with the merits of the Tribunal's decision”. The applicant had not filed any written submissions.

15        Despite her conclusion about the nature of the applicant’s complaints in the hearing before her, in a lengthy and detailed judgment, her Honour rejected all of the applicant’s grounds of review as set out in his application, adopting a generous approach to the grounds in the sense that her Honour examined many possible legal arguments that the grounds as expressed might be said to raise. For example, her Honour considered the legal principles relating to irrationality as a basis for a finding of jurisdictional error and applied those principles to the Tribunal’s decision, concluding the Tribunal’s decision could not be said to be affected by irrationality or lack of logic in the sense described in the authorities. Her Honour gave consideration to whether the Tribunal had failed to consider any of the applicant’s claims, or had failed to consider corroborative material. Her Honour spent some time on the applicant’s contention that the Tribunal had not “investigated” his claim, carefully outlining the legal principles concerning the Tribunal’s function, and noting that the limited circumstances in which the Tribunal might have a legal duty to make an obvious inquiry (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39) did not exist on the applicant’s review.

APPLICANT’S NOTICE OF APPEAL

16        The applicant did not lodge an appeal from this decision within the time prescribed by r 36.03(a)(i) of the Federal Court Rules 2011 (Cth): namely, within 21 days from the date of the Federal Circuit Court orders. Several months later, on 23 July 2014, the applicant filed an application for an extension of time to appeal, together with a draft notice of appeal. The grounds of appeal set out in the draft notice of appeal filed with the application are as follows:

Grounds of appeal

The Honorable [sic] Federal Circuit erred in not considering that the Refugee Review Tribunal (the Tribunal) made a mistake when the Tribunal assessed the applicant application for review. The Tribunal took wrong information not relevant with the claim into consideration to assess the review application and the Court did not find the Tribunal’s error. The Tribunal collected information and rejected genuine claim using those information without any investigation and without checking relevant information and circumstances. The Court did not consider it.

Particulars:

The Tribunal put to the applicant that it would have been better to stay in [redacted] for the six months.

In his application the applicant was unemployed in Australia and in response to the request to give details of how he was financially supporting himself, he wrote

‘from my father’. Those claims are inconsistent with his evidence during the hearing that his father had sold his house to finance the applicant’s trip to Australia and nothing left and that the applicant was financing himself in Australia because his visa allowed him to work full time.

If they can be protected in that fashion, the Tribunal does not understand why he could not be protected.

2. The Honorable Federal Circuit Court erred in not finding that the Tribunal made a procedural mistake when the applicant provided original documents in support of his claim it collected the information for the purpose of review. The Tribunal’s evaluation of the evidence and the adverse view of that evidence was not just, correct and according to Migration Act., which is also a jurisdictional error that it did not comply with the part 7 of the Act, it should communicate with the applicant its different view and adverse findings and the Court did not consider it.

Particulars:

The applicant travelled to [redacted] to save his life from 18 February to 18 March 2011 and to [redacted] from 28 July to 4 August 2011 but he was not able to get protection there. The Tribunal misunderstood and mixed this information with the applicant’s own country travelling information.

The Tribunal give little weight to the medical documents because it is not clear what the injury was and it is silent to causation

The Tribunal is not satisfied that the applicant was the “G.S in in 2011, or worked very for the party, or that he was ever an active member of Youth Congress. It is also not satisfied that he will be active in Youth Congress if he returns to India.

The reasons were found by the Tribunal was not done fairly; the Tribunal made mistake and misunderstood its obligation to assess relevant documents and witness for the review application.

17        I read this draft notice of appeal, despite its numbering, as setting out three grounds of appeal: the last paragraph appears in my opinion to state a third ground, independent of the contentions in the paragraph numbered “2”.

18        In support of his application for an extension of time, the applicant relies on an affidavit affirmed 23 July 2014 and filed with the application pursuant to r 36.05 of the Federal Court Rules. In that affidavit he states:

1. I am the applicant in this application to this Honourable Court.

2. I do not know the Australian law and system. I did not know that I can apply to this Court. I did not know what to do after my case was rejected from Federal Circuit Court, that’s why the application was not within time.

3. I am suffering from mental anxiety because I have not seen my parents for long time.

4. I do not have work currently and I have financial hardship.

5. I do not have money to hire a lawyer.

6. My case and my fear for harm were not properly assessed by the Refugee Review

Tribunal. The Tribunal did not assess my evidence and documents properly. The Tribunal failed to consider the relevant evidence for the application. The Tribunal failed to inquire before rejecting the evidence and the Court below did not consider it.

7. I think that the Tribunal did not apply the right law for the assessment of my case and the relevant supporting evidence, the Tribunal made my return and join in Y.C an issue wrongly and the Court below did not properly look into this issue.

APPLICANT’S ARGUMENTS AT THE HEARING

19        The applicant spent some time at the hearing explaining why the Tribunal should have believed his account. He also spent some time explaining how he did not know he had a right of appeal from the Federal Circuit Court, and how long it took him to find the correct information, with the help of a friend, to lodge the appeal documents.

The potential procedural fairness issue

20        During these explanations, and while giving his account of what happened before the Tribunal, the applicant mentioned that after the Tribunal hearing, when the Tribunal had given him two weeks to provide additional documents, he did attend the Tribunal to provide such documents, although it had taken him more than two weeks. He gave a precise time of 32 days.

21        The following extract from the hearing discloses how the issue arose:

HER HONOUR: SZTDC, I want to ask you about these documents that you say you tried to file with the tribunal, and the tribunal did not let you. I think – I’m sorry, Mr Interpreter. As I understand the tribunal’s reasons, you had a hearing in December 2012, and the tribunal gave you two weeks after that to file some photographs about your political activities in India. Now, you have said to me that you couldn’t do it in two weeks, but after about four weeks you put some documents in; is that right?

THE INTERPRETER: Yes, I tried to, but they didn’t accept.

HER HONOUR: What were the documents you tried to put in?

SZTDC: Photographs, police certificate and my X-ray report.

THE INTERPRETER: The photograph, police certificate and my X-ray report.

HER HONOUR: I’m sorry. Police?

THE INTERPRETER: Police certificate, police letter or certificate from police.

HER HONOUR: And X-ray. What were the photographs of?

THE INTERPRETER: My role in Congress Party. I was at GS. My activity in the party all were photographed. There was photographic evidence.

HER HONOUR: How did you send them to the tribunal?

THE INTERPRETER: I went to the party office personally, and I tried to go – I went for two reasons. One is to change my address and get those paperwork – evidence, but the officer was saying that I am out of time to give those paper, but she or he changed the address. So all those what I’m saying I was mentioned in hearing, and it is – should be recorded on this disk. If you want, you can hear those disks about evidence, my family living in [redacted] because of the situation, all those – was mentioned in RRT interview.

HER HONOUR: So you say you went to the tribunal about one month after your hearing; is that right?

THE INTERPRETER: Yes, one month and two days, it was, 32 days, as I understand.

22        The relevant part of the Tribunal’s reasons is the following (at [36]):

The Tribunal allowed the applicant two weeks to provide photographs showing his involvement in political activities in India but said that it would consider anything provided before the decision was written. As of the date of decision, no photographs or other material has been provided.

(Emphasis added.)

23        It can be seen that the Tribunal had indicated a willingness to receive material not only during the two-week period, but up until the time of its decision, which was not until several months later. Therefore, even if the applicant had presented at the Tribunal after the two-week period, as he alleged, on the Tribunal’s own reasons there was at least an argument it had determined to allow him to submit such material, and he was in fact denied that opportunity when he sought to provide the materials at the Tribunal’s office.

24        After giving the Minister’s representative an opportunity to address these and other issues, the applicant was asked to give oral evidence to substantiate his claims about attending on the Tribunal. His evidence was:

HER HONOUR: Thank you. Now, I’m going to ask you some questions and then, Mr Leerdam will have a chance to ask some questions. Now, you went to a hearing at the RRT on 13 December 2013. Is that correct?

THE INTERPRETER: Yes.

HER HONOUR: And the tribunal gave you an opportunity to put in some material within two weeks after that. Is that correct?

THE INTERPRETER: Yes.

HER HONOUR: Did you put in the material in two weeks?

THE INTERPRETER: No, your Honour.

HER HONOUR: What happened?

THE INTERPRETER: So as you know I – India is took a long time to file a or a prepare all those paper as I mention. It – medical certificate and political leader and some paper from [redacted] embassy about my family I leave in India. All those – to prepare all those paper, it is take some time and the photographs what I would like to provide that time. I live in a very small state – an Indian state which name is [redacted]. So to become – to get the paperwork from my party leaders I sometimes have to travel to Delhi. So to travel from [redacted] to Delhi is taking up to five days. The review knows and I assume you know that travelling in India by train is very lengthy and slow. Because none of my family members living in my – in their place, I couldn’t afford someone to travel by plane so they had to travel by road train.

HER HONOUR: All right. So when did you receive the material from India?

THE INTERPRETER: Four weeks late after.

HER HONOUR: All right. What material did you receive from India? Describe it to me please?

THE INTERPRETER: Photograph, police certificate and my – the – evidence about my family travelling – travelled to [redacted] – went to [redacted]. And a letter from my president – the president of the congress party in higher plane not the one we gave it with you.

HER HONOUR: All right. What was the photograph of?

THE INTERPRETER: This was my – regarding my involvement in Congress Party. Local activity like them – procession, demonstration, public gathering, my role as a GS. I was re-elected GS. All those events was photographed.

HER HONOUR: How many photographs?

THE INTERPRETER: Six. Six of them.

HER HONOUR: What was the medical certificate?

THE INTERPRETER: In the first time I had provided the medical certificate but they ask me about my extra report about my injury and the one I’m – we are talking about now is the extra report.

HER HONOUR: Right. And what was the letter that you referred to?

THE INTERPRETER: So the letter I provided before, it was from the local base president about my activity in party but the one we are talking about – about my role and my victimisation. I was a victim regarding this was from the higher plane – someone from Delhi – someone from higher plane, the president. And another paper was from police mentioning the – all those incident. In other hearing I told them – told the member all – about all those documentation and I assured him or her that I would be able to provide those – the documentation to you.

HER HONOUR: All right. Now, can you describe to me, when you say you took those documents to the RRT, how did that happen?

THE INTERPRETER: In the hearing there I updated my address in the RRT. At jail after 32 days from the hearing date I went to the other two with those documentation and told the – submitted to the officer in front but the check-in desk, they told me – or he or she told me that, “You are out of time and we can’t accept this.” Before that I went to the RRT to change my address. They gave me a form to fill out but in this case, they didn’t give me any form to fill out.

HER HONOUR: The officer who spoke to you saying you could not file the documents, was it a man or a woman?

THE INTERPRETER: A lady in her – not elderly. Maybe – what I guess is maybe 50-something – was a bit healthy.

HER HONOUR: I see. Just wait there, SZTDC. Mr Leerdam, I might leave it to you to ask the applicant about the change of contact details. It seems to me that might be more appropriate.

25        Later in his evidence, during his cross-examination, he gave the following evidence about why he had not raised this issue before the Federal Circuit Court:

when I put my application in the Federal Circuit Court – in first appearance I been told from the judge that we will be not accepting any supporting document because the Circuit Court only be looking – the error or technicality – technical error of the RRT, but I told judge that I have some supporting document. We will not take any document. Only will look the technical error of the RRT. When the second hearing came, because just told me that he or she will not be looking at supporting document because the supporting document what I want to give was not been – wouldn’t accept it, as I understand. The judge told me that, “What about documents you provided for. We will go through this, and we will go through this and try to find out whether any technical error has been made.” What about a discussion between me and judge was – is that – with the existing document, not the documents I had at my home that I want to give.

26        It will be noted that, in this last sentence, the applicant told the Court he had the relevant documents “at my home”. The clear import of his evidence was that he could have provided the documents to the Federal Circuit Court if he knew he was able to.

27        The Minister’s representative then asked a further question, which the applicant answered:

MR LEERDAM: And did you bring the documents to court with you?

THE INTERPRETER: I didn’t bring here. I didn’t know that I can submit, but if the court want, I can bring any time

MR LEERDAM: Are you prepared to put those documents in evidence before this court?

THE INTERPRETER: Yes, if your Honour want, I can give

28        There was then some further cross-examination by the Minister, directed at suggesting that the attempted submission of these documents to the Tribunal did not occur in the way the applicant suggested. In my opinion it was important the applicant was confronted squarely with the import of the Minister’s suggestion. The following exchange occurred:

HER HONOUR: SZTDC, Mr Leerdam is suggesting that you are not telling me the truth and that you did not go to the tribunal in the middle of January and you did not try to put any documents to – into the tribunal. Now, are you telling me the truth? Wait, wait, wait.

THE INTERPRETER: So of course, I took those documentation to the RRT office. Why I’m lying? What – who thought the point to lie. I have the document. If is come early I go early. If is come more late I would taking them more late. The time I say until I got – as soon as I got, I took to the office.

29        After discussing with the Minister’s representative the timing for the submission of any responsive evidence on behalf of the Minister and some short submissions on the issues raised, I then raised with the applicant the need for him to provide the documents he claimed to have attempted to give the Tribunal:

SZTDC, the Minister, because of the evidence you have given, as a matter of fairness, I need to give the Minister a chance to put on some evidence about what happened at the tribunal and to make some short, further submissions about what you have said in the witness box. The Minister is going to do that by 8 December 2014 – this year. So those documents will be filed with the court and a copy will be given to you. You need to provide the documents that you tried to file with the tribunal to the court. Can you bring those documents into the court next week?

THE INTERPRETER: Yes. Next ..... I want to give, but I want till the fixed date because I have some work.

HER HONOUR: Well, I’m going order you to file them with the court by Friday, 21 November.

HER HONOUR: And, Mr Leerdam, the court will arrange for copies of them to be provided to the Minister. I think that’s the easiest way for it to be

MR LEERDAM: Yes, your Honour.

HER HONOUR: to be done. So, SZTDC, you are to bring the originals and file the originals in court. All right.

THE INTERPRETER: Anytime up to – up to 25th?

HER HONOUR: Up to 4 pm on 21 November.

THE INTERPRETER: 25th

HER HONOUR: First.

THE INTERPRETER: 21st – so the 21st. 21 November.

HER HONOUR: All right. You must bring them to the registry of this court and they must be exactly the same ones you tried to file with the tribunal in, you say, January 2013.

THE INTERPRETER: Yes.

30        In my opinion the applicant understood what he was being asked to do: namely, to bring into the Registry of this Court the original of the documents he had attempted to provide to the Tribunal. He gave no indication whatsoever that he did not have the documents, or could not supply them. Indeed, he had previously given the opposite impression in his evidence: namely, that he had them at home. The only issue he raised was whether he could bring them in because of his work commitments.

31        The applicant has not complied with the direction given to him by the Court. He has provided no original documents to the Registry of this Court. Instead, on 21 November 2014, he filed a further affidavit sworn by him that day.

32        The affidavit relevantly states:

Refered to the letter. Submitting my scan copy. Original documents are one the way it will take 2 more weeks.

33        There was a handwritten letter attached to the affidavit. It states:

Madam/Sir

I Mr [SZTDC] was supposed to submit my original documents related to my case by 21 November 2014. But I suspect there will be a delay of about two weeks due to some unavoidable circumstances.

I kept the original documents in the safe custody of my friend in a locker in his house. but he had to travel abroad due to some emergency in his extended family. He cannot be back in Australia in the next few months. In that situation I am arranging to bring the document from India once again in the next two weeks. My friends in India have arranged the documents for me and sent me a scanned copy of the same. My friend already posted my document from India and it will take 2 weeks to reach Australia. He has provided me a scanned copy in my Email that I am submitting on 21st november. I shall be highly obliged if you kindly consider my case and allow me to submit the original documents in two weeks time.

Thanking you

Yours faithfully

[SZTDC]

34        Four documents are then attached. Two are documents addressed to “To whom it may concern”, on a letterhead which states “Member, [redacted] Legislative Assembly, [redacted]”. Each is signed by a person whom the letter identifies as a member of the legislative assembly. In the first document, the author states he or she has known the applicant since birth, and makes some statements about the applicant’s parents, his political activities and the threats to him. The letter is dated by hand, twice, with the date 18 November 2014. It is self-evidently not a copy of the letter which the applicant attempted to give the Tribunal in January 2013. The second document bears the same date, twice, of 18 November 2014, and states the author has known the applicant’s parents for 35 years, and states that the applicant’s parents were compelled to move away. Again, it is self-evidently not a copy of the letter which the applicant attempted to give the Tribunal in January 2013.

35        There are then two documents which appear to be medical certificates of some kind. Both are on the letterhead of the same medical practitioner. One is dated 16 August 2011, the other 19 August 2011. One of these documents states the applicant was “under treatment” between 7 and 16 August 2011 after “suffering from [illegible] Assault”, and was advised to rest.

36        These two documents do not match the description given by the applicant in his evidence of what the applicant stated he tried to provide to the Tribunal. In his evidence to this Court, he referred to one “extra report”, in addition to the medical certificate he had provided to the Tribunal. It is not clear which of the documents the applicant attached to his affidavit is supposed to be the “extra report”. The applicant did not state in his evidence that there were two “extra” reports. There is no further evidence about the photographs and x-ray to which the applicant referred in his oral evidence.

37        Considering the whole of this evidence, there are substantial difficulties with the applicant’s conduct, and his evidence. First, he has failed to comply with the Court’s direction. During the hearing, neither in his evidence nor in his submissions did he inform the Court that the documents were with a friend in a safe. Indeed, he stated on oath they were “at my home”. He stated he could provide them at “any time”, identifying only his work commitments as a reason he needed some time to file the originals.

38        It is, of course, not possible for the applicant to comply with the Court’s direction by obtaining documents from India. He appears to wish to obtain replacement or supplementary documents, which may or may not be the same in substance as those he claims to have taken to the Tribunal in January 2013. Some of the documents he has supplied with his 21 November 2014 affidavit are clearly new documents, which was not what he was directed to provide.

39        I do not accept the applicant’s explanation for his non-compliance with the Court’s directions. The inconsistency between his explanation and his oral evidence on 14 November 2014 is significant. I find his evidence about the documents he claims to have provided to the Tribunal in January 2013 is now so wholly unreliable that there are no reasonable prospects of success in any argument that the Tribunal denied him procedural fairness in January 2013 by not accepting original documents he sought to give the Tribunal. There were, as the Minister’s representative submitted, in any event a number of other legal hurdles facing this argument, including whether the material the applicant sought to put forward could possibly have made a difference to the Tribunal’s decision (Stead v State Government Insurance Commission (1986) 161 CLR 141). There were also evidentiary issues to be overcome about what happened at the Tribunal in January 2013, given that the Tribunal had no records of the applicant attending its offices at that time to change his contact details, although it had all records of his other attendances to change his contact details.

40        When those difficulties are considered in addition to the unreliability attaching to the most recent version of events given by the applicant about the whereabouts of these documents, there is insufficient persuasive material for the Court to consider putting the Minister to the time, cost and resources of obtaining further evidence and submissions on this potential procedural fairness issue. I am not satisfied the issue has sufficient merit, as it lacks any reliable evidentiary base from the applicant, even before any legal issues are addressed.

41        Accordingly, by order dated 25 November 2014 I vacated the directions given to the Minister on 14 November 2014, and informed the parties that the Court would consider the application for an extension of time on the existing material, together with what was filed by the applicant on 21 November 2014, and would deliver a decision in due course.

42        What follows therefore reflects the grounds as otherwise presented by the applicant, and to which the Minister responded, putting the potential procedural fairness issue to one side.

THE MINISTER’S SUBMISSIONS

43        The Minister accepts that there would be no prejudice to him in allowing an extension of time for the applicant to file a notice of appeal. However, the Minister contends that three months is not an insignificant delay and the applicant’s explanation that he is not familiar with the Australian legal system and is unrepresented is not satisfactory. The Minister submits that, in any event, the application should be refused as the appeal would have no reasonable prospects of success. The Minister submits that the Federal Circuit Court considered the applicant’s contentions that the Tribunal “failed to consider the relevant evidence for the application” and concluded the applicant’s allegation could not be made out. Further, the Minister submits the Federal Circuit Court considered whether there was an obligation on the Tribunal to make inquiries, and found there was no such obligation. The Minister submits the applicant’s grounds otherwise seek impermissible merits review of the Tribunal’s decision.

EXTENSION OF TIME: APPLICABLE PRINCIPLES

44        Rule 36.03 of the Federal Court Rules requires a notice of appeal to be filed within 21 days after the date on which the judgment appealed from was pronounced or the order was made. The decision of the Federal Circuit Court was made on 26 March 2014. Accordingly, the notice of appeal in this proceeding should have been filed on or before 16 April 2014. The applicant is more than three months out of time.

45        In considering whether to extend the time in which a notice of appeal may be filed, the Court takes into account three principal matters: any explanation for the delay, any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted and the prospects of success of the appeal if an extension of time were to be granted. These considerations were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 and have been applied consistently in this Court, by single judges and Full Courts, in and outside migration appeals.

46        The discretion to extend time is reposed in the Court to ensure that the interests of the administration of justice are served and parties whose substantive appeals should be heard and determined in accordance with law are able to secure that outcome. The Minister’s submissions properly recognise this purpose.

47        Sometimes matters such as lack of legal representation, little or no proficiency in English, and little or no understanding of the Australian legal system may combine to suggest the delay is explicable. Other factors such as the length of the delay, the steps taken by an applicant during the running of the time period, and the time at which the applicant received a copy of the orders and reasons of the Court below may be significant. The party’s personal circumstances may need to be considered. The importance of the subject matter of the proceeding to the party requesting an extension of time may also be relevant: the more there is at stake, the more confident the Court may need to be before it refuses an extension of time, especially if the delay is not significant.

48        Even in circumstances where the Court is persuaded there is an acceptable explanation for the delay, the prospects of success of any appeal may be determinative of the manner in which the Court’s discretion should be exercised. That is because it is not in the interests of the administration of justice to utilise the resources of the Court and other parties where there is no realistic prospect the appeal will succeed if an extension of time is granted. Such a process also exposes an applicant to the risk of significantly greater adverse costs orders if the appeal is unsuccessful.

CONSIDERATION

49        The question of prejudice to the Minister does not arise, as the Minister properly conceded.

50        The applicant’s evidence discloses he suffers from the disadvantages many self-represented litigants in migration appeals also experience. However, he lodged his judicial review application to the Federal Circuit Court within time and it is not apparent from his evidence how he knew about the time limits for that application but not for an appeal. Nor is the delay of three months satisfactorily explained by his lack of knowledge. It is apparent from the decision of the Federal Circuit Court that the applicant was in fact able to put what he wished to say before that Court with some detail and focus, even if it was not ultimately accepted, and there does not appear to have been any material change in his circumstances between the time he appeared at the Federal Circuit Court, and the time after that Court’s decision.

51        I do not consider the applicant has provided an acceptable explanation for the delay of three months in seeking to file an appeal.

52        Even if I had been satisfied the applicant had an acceptable explanation for the delay, I do not consider the appeal has sufficient prospects of success to warrant an extension of time being granted.

53        The two, or possibly three, grounds of appeal raised by the applicant in the draft notice of appeal have no reasonable prospects of success. The first ground raises again an obligation of the Tribunal to “investigate” the applicant’s claim in a way which it is not required to do, as the Federal Circuit Court correctly pointed out. The second ground may involve the obligation in s 424A of the Migration Act, although that provision is not expressly mentioned. However the information identified is within the exception in s 424A(3)(b): namely, information given to the Tribunal by the applicant for the purposes of the review.

54        What I have identified as a possible third ground is of such a general nature as to be incapable of pointing to any jurisdictional error in the Tribunal’s decision, and does not attempt to point to error in the Federal Circuit Court’s decision.

55        For the reasons I have set out at [15] above, the Federal Circuit Court’s judgment is fulsome. To the applicant’s benefit, the Court considered the application of a series of legal principles which may have assisted him, even though he did not squarely raise these issues. There was no error in the approach taken.

56        The application for an extension of time must be dismissed. There is no basis for anything other than the usual order as to costs.

Associate:

Dated:    1 December 2014