FEDERAL COURT OF AUSTRALIA

MZZGC v Minister for Immigration and Border Protection [2015] FCA 842

THE COURT ORDERS THAT:

1.    The time in which the applicant may appeal from the judgment of the Federal Circuit Court in MLG 176 of 2013 delivered on 31 January 2014 is extended to 29 May 2015.

2.    Subject to further order, the proposed notice of appeal filed on 29 May 2015 stand as the applicant’s notice of appeal in the appeal.

3.    The first respondent’s costs of the application are to be costs in the appeal.

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

REASONS FOR JUDGMENT

1    The applicant has sought an extension of time in which to appeal from the judgment of the Federal Circuit Court dismissing his application for judicial review in relation to the decision of the second respondent, an Independent Protection Assessor, who found that the applicant did not meet the criterion for a Protection Visa (Class XA) set out in s 36(2) of the Migration Act 1958 (Cth), and therefore recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Refugees Convention. The applicant is a man of Tamil ethnicity, who is, it is accepted, a national of Sri Lanka.

2    I have found this a difficult application to decide. For the reasons set out below an extension of time will be granted.

PROCEDURAL HISTORY AND THE HEARING OF THE APPLICATION

3    The applicant did not appear at the hearing of his application on 12 August 2015. A letter was received by the Court that morning from a friend of the applicant’s. It stated (with redactions so as not to identify the applicant):

My friend [redacted] is very ill and I am writing this letter to the court because he told me is is very worried because he has a court hearing tomorrow, 12th August 2015.

He has been unable to pay proper attention to his court matter for a many weeks because he began having seizures/fainiting. He is finding it very difficult to function daily and is not getting better. We have taken him to see a doctor and he is having tests to find out what is wrong.

I request the court to please give Mr. [redacted] some time.

4    Attached to the letter was a referral for a CT scan, dated 11 August 2015. The Minister did not oppose the receipt of the letter and the referral into evidence, but did oppose the granting of an adjournment.

5    I accept for the purposes of this application that the applicant was not well enough to appear. I decided not to adjourn the hearing despite his absence because it seemed to me based on the material he had already filed, and his general circumstances, that he would have not been able to add much to what was already before the Court. My view was that his application could be dealt with fairly, and fully, in his absence, and all possible arguments in support of his application explored and considered. That is what occurred, with the proper assistance of the Minister’s counsel.

6    The Federal Circuit Court decision and orders were made on 31 January 2014. The applicant needed to file his appeal to this Court by 21 February 2014: r 36.03(a) of the Federal Court Rules 2011 (Cth).

7    The applicant did not file his application for an extension of time until 29 May 2015. His appeal would be over one year and three months out of time.

8    The affidavit in support does not annex any notice of appeal, and the affidavit does not set out any grounds of appeal. A draft notice of appeal was filed on 29 May 2015. It sets out the following grounds:

(1)    That there is a jurisdictional error in the Federal Circuit Court Decision

(2)    The reasons provided by the second Respondent to the first Respondent in Support of the Second Respondent's recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational.

(3)    Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed.

9    In his affidavit in support of his extension of time application, the applicant deposes that he did not have the financial capacity to engage “a private lawyer” to appeal after the lawyers he was able to access in Melbourne, namely Victoria Legal Aid and the Asylum Seeker Resource Centre, told him they could not assist him any further. However he deposed that he had been informed by a friend that the friend will assist him with a loan to engage a private lawyer and he was therefore now in a position to lodge an appeal and search for legal representation.

10    He also deposed to having applied for Ministerial intervention. The Minister sought and was granted leave to rely on a supplementary appeal book on the application which contained a series of documents about the process by which his application for intervention was dealt with. A migration agent acting pro bono applied on the applicant’s behalf. The Minister correctly emphasised that the evidence shows clear advice from the Department that applications for Ministerial intervention should not affect the taking of steps for judicial review or departure arrangements.

11    Reading his material fairly given he is unrepresented, unfamiliar with the Australian legal system and that English is not his first language, I take the matters I have set out above to be the applicant’s explanation for not lodging an appeal within time. The Minister accepted this was an appropriate approach.

12    The Minister has correctly referred to the principles expressed in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 348-9 per Wilcox J as having equal application to r 36.05: see for example SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281 per Collier J, Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [13] per Farrell J and Parker v The Queen [2002] FCAFC 133 at [6]. The Court will consider whether:

(1)    there is an acceptable explanation for the delay;

(2)    there would be no undue prejudice to the respondent if the Court were to grant leave; and

(3)    there is merit in the substantive appeal or application.

13    In applications for judicial review in respect of migration decisions, if there is merit in a ground of review, it is generally obvious there may be substantial injustice to a party in refusing leave, because the party will be fixed with an arguably unlawful decision that affects her or his migration status in Australia, with all the consequent adverse effects the absence of secure migration status brings, including exposure to detention and removal. When, as here, the application is for a protection visa and the claim made is based on a fear of persecution, in my opinion especially careful consideration should be given to the question of an extension of time, because the claimed consequences for an applicant on refoulement to the country against which the claim for protection is made are of a fundamentally serious kind. That is not to suggest a different standard is applied: rather, it is to acknowledge the nature of the decision for which judicial review was sought and the possible consequences for an applicant if, indeed, that decision was not made in accordance with Australian law and in a procedurally fair manner.

14    The length of the delay and any explanation for it is also a significant factor but the weight of these factors in any given case is likely to vary considerably.

Approach to the extension of time application

15    The length of time between the Federal Circuit Court decision and the application for an extension of time in which to appeal is significant. I accept the Minister’s submissions that the fact of an application for Ministerial intervention is no acceptable explanation for failing to lodge an appeal from the Federal Circuit Court. On the other hand, a lack of access to legal representation and advice for any appeal provides some explanation, especially for an applicant who has the additional disadvantages of unfamiliarity with the Australian legal system, insecure migration status and future in Australia, and lack of functional English. That these attributes may be shared by many litigants in this Court in the migration jurisdiction is no reason to diminish their importance. They do in a real sense, in my opinion, affect the capacity of individuals to access the justice system. What remains unexplained on the evidence is why, in May of this year, the applicant did manage to lodge the documents necessary to apply for an extension of time. Overall, it is difficult to find an acceptable explanation for the delay.

16    The Minister relied on the Full Court decision of Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; 101 ALD 211, and especially the reasons of Jessup J at [29]. I do not consider the case sufficiently analogous to the present situation to be given the weight the Minister submitted it should be given. Although that was a situation where Jessup J expressed the view that there was merit in the appeal, that was a case where the underlying decision of the court below concerned an extension of time in which to apply for judicial review and the question of “deemed notification” in calculating when time for judicial review started to run. It was on that issue his Honour considered there was some merit in the appeal. Despite this, his Honour decided there should be no extension of time because there was no acceptable explanation for delay, even though the applicant had applied for Ministerial intervention.

17    I do not consider the absence of an acceptable explanation for the delay is sufficient reason in the particular circumstances of this case to dismiss the application for an extension of time, and I now explain why I have reached that view. In summary, it is because I consider it is arguable the Independent Protection Assessor’s decision is affected by jurisdictional error.

18    The applicant was represented before the Federal Circuit Court by counsel experienced in the area. Given that the applicant is self-represented and that he is an asylum seeker, I consider the fairest approach to him is for me to examine the grounds argued before the Federal Circuit Court by his counsel and how the learned judge dealt with those grounds, rather than rely on what the Minister correctly submits are very broad grounds in the draft notice of appeal. However, as I noted in argument, the first ground in the draft is in any event capable of encompassing what was argued before the Federal Circuit Court. The Minister accepted this was an appropriate approach.

19    Those grounds can be found in the Federal Circuit Court’s reasons for decision. The first related to an alleged failure of the Independent Protection Assessor to consider an integer of the applicant’s claim, namely that a friend of his had disappeared in similar circumstances, and this corroborated his own claim. It was clear on the terms of the Independent Protection Assessor’s decision that she had not expressly considered this aspect of the applicant’s claim in reaching her decision, but rather had relied on an assessment of the applicant’s credibility. Reliance was placed on the decision of M51 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 887.

20    Describing the claim (at [35]) as “a one-line claim that on the day of his release the applicant tried to contact one of his friends but learned that his friend had been taken away by the SLA and disappeared”, the Federal Circuit Court rejected the ground of review. Distinguishing the situation from that in M51, the Federal Circuit Court held (at [37]) that the Independent Protection Assessor “simply had no basis upon which it could be said that there was a substantial clearly articulated claim based upon established facts”.

21    The second ground was a procedural fairness claim, alleging the Independent Protection Assessor had not considered whether, based on the long period of detention the Independent Protection Assessor accepted the applicant had experienced in the past, there was a real chance he might again be detained on return to Sri Lanka. The Federal Circuit Court rejected this ground (at [49]) on the basis that when the Independent Protection Assessor’s decision was read as a whole, and read “broadly and beneficially”, this issue was considered, and was specifically mentioned in that part of the Independent Protection Assessor’s reasons where she considered the claims cumulatively.

22    The third ground of review was also an argument that the Independent Protection Assessor failed to consider an integer of the applicant’s claim: namely that the applicant’s previous (long) detention, coupled with being a Tamil failed asylum seeker, might cause difficulties for him on return which would be distinct to those faced by a Tamil returnee who had not been detained in the past (on account of suspicions he was associated with the LTTE), as he had been. The Independent Protection Assessor’s decision expressly referred to this issue in considering complementary protection, but not in relation to the claim under the Refugees Convention.

23    Referring to other findings of the Independent Protection Assessor concerning her view that the applicant’s fear of persecution was not well founded because he would not be suspected of being an LTTE supporter, having been released from the camp without charge or (as the Independent Protection Assessor found) further interest from the authorities, the Federal Circuit Court decided this ground was not made out. The Federal Circuit Court also found (at [59]) that the generality of the Independent Protection Assessor’s findings (adversely to the applicant) that he did not have a profile which would lend itself to suspicion of his being an LTTE supporter if returned to Sri Lanka and that as a failed Tamil asylum seeker he would be subject to security checks upon return to Sri Lanka but no more, were sufficient to “subsume” any suggestion that he could have a well founded fear on the basis set out in ground 3.

24    The fourth ground was a further “integer” claim, based on a complaint said to have been made by the applicant’s mother to the Sri Lankan Human Rights Commission about the questioning and harassment of the applicant’s mother and his sister about his whereabouts. This ground alleged the Independent Protection Assessor failed to consider whether the making of this complaint would put the applicant at an increased risk of persecution on his return. The Federal Circuit Court found this claim was expressly rejected by the Independent Protection Assessor and therefore the contention that it was not considered could not be made out.

It is arguable the Independent Protection Assessor’s decision is affected by jurisdictional error

25    At the stage of considering whether there is merit in an allegation of jurisdictional error for the purposes of considering whether to extend time, it is not appropriate to explore and determine arguments about that alleged error in the detail one would do so on an appeal. I consider the third ground of review identified before the Federal Circuit Court, concerning the Independent Protection Assessor’s failure to consider the effect that the applicant’s previous long detention by Sri Lankan authorities might have on his treatment on his return, is an arguable ground.

26    Prior to that part of the decision record from [62] onwards where the Independent Protection Assessor expresses her findings and the reasons for them, there are a variety of paragraphs which might be said, in my opinion, to reveal that the Independent Protection Assessor was treating this applicant as one would any other Tamil asylum seeker who had not been suspected of being an LTTE member, detained by Sri Lankan authorities for a long period of time and beaten during that detention, and about whom there are likely to be records held by the Sri Lankan authorities. Those paragraphs include [36]-[38], [48], [52] (which may not have been the most relevant kind of country information for a person with the applicant’s profile), [55], and [57].

27    I turn now to that part of the decision record where the Independent Protection Assessor sets out her findings and reasons. It is here one primarily looks to see whether an integer of a claim has been considered and dealt with, as the decision-maker’s task required.

28    At [75] and [76] the Independent Protection Assessor emphasised the fact that the country information showed a person in the applicant’s position would be subject to questioning and security checks upon entry and arrival back into Sri Lanka. The Independent Protection Assessor then reasoned that the applicant faced no particular risk of harm from these procedures. Four factors are referred to in [75], but what is missing is a reference to the very long period of detention the Independent Protection Assessor accepted the applicant had experienced at the hands of the Sri Lankan authorities, including being beaten, and all on suspicion of links with the LTTE (see for example [65] and [66] of the decision record).

29    The Independent Protection Assessor also accepted (at [77]) that “it is possible the authorities have been in contact with [the applicant’s] sister and his mother asking after him.”

30    The third ground of review is strengthened by the Independent Protection Assessor’s acceptance of conduct by the Sri Lankan authorities after the applicant had left Sri Lanka.

31    The curious expressions used in the decision record (for example at [66] and [78] where the Independent Protection Assessor describes the applicant as “residing” at detention camps run by the Sri Lankan authorities, as one might “reside” in a house or area, would not of itself be given much weight, but in the context of the approach taken overall by the Independent Protection Assessor it might be seen to suggest the Independent Protection Assessor had not carried through the serious findings she had made about what had happened to the applicant at the hands of the Sri Lankan authorities to her assessment of what would occur to him, as opposed to failed Tamil asylum seekers without that past history, when he was involuntarily returned to Sri Lanka and arrived at Colombo airport.

32    There are reasonable prospects that a court on appeal, after full argument, could be satisfied that the Independent Protection Assessor’s decision is affected by jurisdictional error. How that error is ultimately identified should be a matter on which the applicant has an opportunity to obtain legal advice and representation. It may be said the claim was expressly put (see [63] of the Independent Protection Assessor’s decision record) and not dealt with, or that it clearly arose on the material, as the Minister properly conceded, and was not dealt with. These are matters to be considered in the appeal itself.

33    The Minister has, and has put in some detail, cogent arguments why the better characterisation of the reasons is that this claim, and the applicant’s particular attributes by reason of accepted past experiences, was considered and dealt with by the Independent Protection Assessor. The Minister points for example to [74] of the Independent Protection Assessor’s decision record. Those contentions may ultimately be accepted, but that should be a matter for full argument on appeal, when the applicant has the benefit of legal representation.

34    There may be more than one way the error can be described, but in my opinion there is certainly a reasonable argument that the Independent Protection Assessor failed to deal, in the way her task required her to, with the claim that the applicant’s long detention, in circumstances where he was specifically detained because of suspicions of association with the LTTE, and that detention was by the Sri Lankan authorities who would be the ones questioning him on his return (and with access to records, on the Independent Protection Assessor’s findings). The failure of the Independent Protection Assessor to link the long detention with post-flight inquiries by Sri Lankan authorities highlights what might be successfully argued to be her failure to appreciate the significance of these factual issues in the claim as made by the applicant, which were specific to him and not covered by any general findings about the risks facing Tamil men returning as failed asylum seekers.

35    If those arguments succeed, then the Federal Circuit Court was in error in not upholding ground 3 of the review before it.

Conclusion

36    I am satisfied it is in the interests of the administration of justice for the applicant to be granted an extension of time in which to appeal, notwithstanding there is no satisfactory explanation for the delay in applying to this Court. The Independent Protection Assessor’s decision forms the substantive basis for the likely forced return of the applicant to a country where he claims he has a well founded fear of persecution. If it is arguable that decision is invalid, in my opinion that factor outweighs, in this case, the absence of an acceptable explanation for the considerable delay in applying to this Court.

37    I propose to make a referral under r 4.12 of the Federal Court Rules for the applicant to receive pro bono legal advice and representation on the appeal. The parties will be informed in due course of the arrangements for the hearing of the appeal.

Associate:     

Dated:    13 August 2015