FEDERAL COURT OF AUSTRALIA

SZUTZ v Minister for Immigration and Border Protection [2015] FCA 186

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal filed on 8 December 2014 be dismissed.

2.    The applicants pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    I heard an application in this matter on 4 March 2015. At the conclusion of the hearing I dismissed the application and ordered the applicants to pay the Minister’s costs. Although it was clear at the time why I had decided to do so, I indicated that I would publish reasons today. These are those reasons.

2    The applicants are a married couple from the State of Kerala in India, who applied to the Minister for a protection visa. The first applicant claims to fear harm in India from Hindu extremists because of his Christianity and his charitable work with a Catholic youth movement. His wife, who is the second applicant, was included in the application as a member of his family.

3    Their application was refused by a delegate of the Minister and they sought review by the Refugee Review Tribunal. But there were inconsistencies in the first applicant’s accounts which led the Tribunal to conclude that he was untruthful and that his protection claims were based on false accounts. Consequently, the Tribunal affirmed the delegate’s decision. The applicants then sought judicial review of the Tribunal’s decision, but their show cause application in the Federal Circuit Court was dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) on the ground that it did not raise an arguable case for the relief claimed.

4    The applicants are naturally aggrieved by this decision and want it overturned. There are, however, a number of obstacles in their path.

5    First, the decision of the Circuit Court was interlocutory. Lest there was any doubt about it, subr 44.12(2) spells this out. That means that the applicants require leave to appeal: Federal Court of Australia Act 1976 (Cth) s 24(1A). Leave to appeal will not generally be granted unless the decision in question is attended by sufficient doubt to warrant it being reconsidered and substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

6    Second, the application had to be filed within 14 days after the date on which the judgment was pronounced or the order was made: Federal Court Rules 2011 (Cth), r 35.13(a). The judgment of the Circuit Court was pronounced and the order made on 20 November 2014. The applicants did not file their leave application within that period. They filed it on 8 December 2014 – four days late. That means that they need an extension of time in which to bring that application.

7    Third, there are serious problems with the proposed grounds of appeal. I will come to these problems shortly.

8    The first applicant appeared at the hearing assisted by a NAATI accredited interpreter in the Malayalam language, which I was assured is his native language. His wife did not appear. The first applicant told me she was in India. He assured me that she was aware the matter was listed for hearing and that the hearing would proceed in her absence if she did not appear.

9    The Court’s discretion to grant an extension of time is a broad one, unencumbered by any express limitations. But that is not to say that the Court is completely at large to do as it pleases.

10    First, statutory discretions must always be exercised having regard to the subject matter, scope and purpose of the legislation which creates them. In Hunter Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348, Wilcox J summarised the effect of the case law in this area and provided a non-exhaustive list of principles which should be brought to bear in an application for extension of time. While that case concerned an application for extension of time under the Administrative Decisions (Judicial Review) Act 1977 (Cth), these principles have been applied repeatedly to applications for extensions of time brought under other legislation, including the Federal Court Rules. In the present case, the most important of these principles are:

(1)    The Court will not grant the application unless it is positively satisfied that it is fair and equitable to do so;

(2)    The applicant must offer an acceptable explanation of the delay;

(3)    Any prejudice to the respondent caused by the delay will militate against the grant of an extension;

(4)    Mere absence of prejudice, on the other hand, is not enough to justify it;

(5)    The merits of the substantive application are relevant.

11    On the question of the merits, it is inappropriate to carry out a detailed analysis, although an obvious weakness in the applicant’s case tells against the exercise of the discretion: see ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [111] and the authorities referred to there.

12    Second, the Court is required to exercise the discretion in a way that best promotes the overarching purpose of the Rules, that is to say the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

13    The application was supported by an affidavit and accompanied by a draft notice of appeal, as the Rules require. Contrary to the requirement in r 35.14(3)(c)(ii), however, it did not contain an explanation for the delay in filing the application. At the hearing I asked the first applicant why his application was late. His initial answer was non-responsive. His second attempt was difficult to understand. Ultimately, I took him to be saying that, although he was present in court when the primary judge pronounced judgment and made the orders and that he heard the reasons when her Honour delivered them and they were interpreted to him, he did not receive a copy of the reasons until later. He said that he did not appreciate that time ran from the date the judgment was pronounced or the orders made. I accept this explanation despite its absence from his affidavit. The reasons are dated 27 November 2014. Presumably they were posted to the applicants at about this time.

14    The Minister does not contend that he is prejudiced by the delay.

15    The problem, as I foreshadowed earlier, is that the applicants’ case is entirely without merit. To illustrate why, it is unnecessary to traverse the details of the Federal Circuit Court’s decision or, for that matter, the Tribunal’s. It is sufficient to refer to the draft notice of appeal and the submissions the first applicant made about them.

16    The grounds of appeal in the draft notice of appeal read as follows (without aleration):

1.     The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The Hon. Judge has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

17    The applicants did not provide any written submissions. At the hearing I asked the first applicant to identify what was manifestly unreasonable about the Tribunal’s decision. He was unable to say. Indeed, he was unable to identify any error, whether of law or fact in the Tribunal’s decision. The fault, he said, was with him. This is what he said, through the interpreter:

SZUTZ: I had a lot of pressure from India when I was having the hearing – RRT. Then I could not provide all the evidences or tell the other evidences at that time. I was confused. I said a lot of mistakes there.

HER HONOUR: Well, how do those circumstances, assuming that I accept them, demonstrate that the tribunal acted in a manifestly unreasonable way when dealing with your claims?

SZUTZ: The RRT looked into everything, but I could not answer all the questions – what they asked me – all the answers properly – correctly.

HER HONOUR: Well, that suggests that the tribunal acted reasonably in relying on what you had to say and didn’t act unreasonably, that the fault is with you and not the tribunal.

SZUTZ: Yes. It is not written like that, is it, in the letter?

HER HONOUR: You mean the ground of appeal?

SZUTZ: Yes .....

HER HONOUR: I will hand down to you my copy, and you can read it for yourself.

SZUTZ: Yes. It is written.

HER HONOUR: All right. So are you telling me that you don’t press that draft ground of appeal any more? That’s not what you rely on? Or do you concede that you could not succeed on it?

SZUTZ: Yes.

HER HONOUR: Well, which is it? What do you want to tell me about that ground now?

SZUTZ: So they asked me other ..... questions, but I could not answer properly at that time. There was confusion and problems within me.

HER HONOUR: Right. Well, so the tribunal itself did nothing wrong?

SZUTZ: No.

HER HONOUR: Well, if the tribunal did nothing wrong, how could the Federal Circuit Court have done anything wrong?

SZUTZ: So whatever ..... Minister wrote, it is right, but I made mistakes when I was answering the questions.

HER HONOUR: Right. Can you just listen to my question and answer it, if you can. This is an appeal from the decision of the Federal Circuit Court judge. If you accept that the tribunal did nothing wrong, where is the error in the Federal Circuit Court judge’s decision?

SZUTZ: I don’t know whom to ask.

HER HONOUR: Well, are you able to identify any error in the Federal Circuit Court’s decision?

SZUTZ: The court said, “I hear what you say,” but they said, “I cannot change anything, because you should have told everything properly in RRT. I cannot make any decisions.” That’s what – that’s what they told me.

HER HONOUR: Well, what’s wrong with that?

SZUTZ: I want to tell the RRT my whole story again.

18    In relation to the proposed second ground of appeal, the first applicant confirmed that he was unable to identify any legal or factual error in the Tribunal’s decision. He had nothing to say against the Minister’s submission that the application should be dismissed.

19    In these circumstances, there is no merit at all in the substantive application. There is no reason to doubt the correctness of the primary judge’s decision. It is understandable that the applicants would want another chance. But, absent any error on the part of the Tribunal, they are not entitled to it.

Associate:

Dated:    6 March 2015