FEDERAL COURT OF AUSTRALIA

MZZTD v Minister for Immigration and Border Protection [2015] FCA 948

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended from Refugee Review Tribunal to the Administrative Appeals Tribunal and the title to the proceeding be amended accordingly.

2.    The application for an extension of time in which to appeal from the decision of the Federal Circuit Court dated 19 March 2015 is dismissed.

3.    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

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 Refugee Review Tribunal (now a division of the Administrative Appeals Tribunal) affirming the decision of the Minister’s delegate not to grant him a Protection (Class XA) visa. The applicant is a man of Tamil ethnicity, who is, it is accepted, a national of Sri Lanka.

Procedural History

2    The Federal Circuit Court decision and orders were made on 19 March 2015. The decision records that the applicant was unrepresented before the Federal Circuit Court. Pursuant to r 36.03(a) of the Federal Court Rules 2011 (Cth), the applicant needed to file his appeal to this Court by 9 April 2015.

3    The applicant did not file his application for an extension of time until eight days later on 17 April 2015. His appeal would be just over one week out of time.

4    A draft notice of appeal was also lodged on 17 April 2015. It sets out the following grounds:

a)

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 second respondent recommendation that the Appellant was not a person to whom Australia had protection obligations were never logical nor rational.

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

b)    I was not aware of my legal options after my federal circuit court hearing.

5    In his affidavit in support of his extension of time application, the applicant repeats what is set out in the draft notice of appeal. Reading his material fairly given he is unrepresented, unfamiliar with the Australian legal system and that English is not his first language, it seems that he took longer than usual to become aware of his “legal options” after the Federal Circuit Court hearing. As the Minister points out, how he did become aware of those options a week later is not explained.

6    At the hearing he explained in his own words that he arranged a lawyer but all of a sudden his lawyer went to India. He said his lawyer was busy with another client and he filed the documents by himself. He said he had the forms but didn’t have any experience in filing them, and he sought some help from friends and that is why it was delayed.

7    He also said that he wrote to this Court by email asking for an extension of time for this hearing so he could get a lawyer but he got a reply saying no further extension would be given.

8    As I have observed in other decisions of this nature, in applications for judicial review in respect of migration decisions, if there are prospects in a proposed 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.

9    The question is almost always whether there are arguable grounds of review of the merits review decision (in this case, of the second respondent), and whether therefore it is arguable the decision of the Federal Circuit Court was incorrect.

Resolution of the application for extension of time

10    At the hearing, the applicant explained that at the Federal Circuit Court he told the Court about the problem with the interpreter at his Tribunal hearing. The applicant stated the Tribunal said there would be a Sri Lankan Tamil interpreter but actually it was an Indian Tamil interpreter who didn’t interpret properly. He said this was one complaint about the Tribunal.

11    At [31] and [38] of the Tribunal decision, the applicant said he couldn’t accept the Tribunal’s decision in those paragraphs. He stated that, in substance, he considered the Tribunal had overlooked how young he was when these events occurred, and that the Tribunal had not mentioned his young age. At [31] he contended that the Tribunal did not take into account how hard it was to get evidence from Sri Lanka about what has happened.

12    At [25] and [61], he criticised the way the Tribunal dealt with what would happen to him if he were sent back, especially whether his human rights would be respected.

13    Although accepting the delay is short and that there would be no “undue prejudice” if an extension were granted, the Minister opposes any grant of an extension on the ground the substantive appeal lacks prospects of success.

14    I accept that submission.

15    The Minister’s submissions (at [18]) have accurately described the Tribunal’s findings about the applicant’s claims:

Specifically, the Tribunal:

(a)    accepted the applicant’s father may have been arrested by the army in 2007 and may have been beaten, but found when his father was released the authorities were satisfied he was not a member or supporter of the LTTE: CB 381 [28].

(b)    did not accept:

i.    the applicant’s claim that a large army base was established in his village after 2009 because of inconsistencies in the presentation of this claim, and with country information: CB 381 [30].

ii.    his claims in respect of ongoing interest in and harassment of his family, by reason of his own evidence and the plausibility of the claim: CB 382 [31] and [32], CB 385 to 386 at [44]. Nor did the Tribunal accept his family was unable to subsist, by reason of the applicant’s own evidence at the hearing: CB 383 [35]. Further, the Tribunal considered the applicant’s own circumstances and was satisfied he would not be denied the ability to subsist: CB 383 [35].

iii.    his claims the Sri Lankan Army was threatening to forcibly recruit him or his brothers because the Tribunal considered the claim implausible given the civil war had concluded and because the claim was not supported by country information: CB 382 [33].

iv.    the applicant’s claim he broke curfew and was subsequently detained and beaten, as the Tribunal considered this claim to be implausible: CB 383 [37]. Nor did it accept the claim raised just prior to the Tribunal hearing that he had been forcibly taken from his home, detained, questioned and beaten in January 2011: CB 384 to 385 [38] to [41]. The Tribunal considered the applicant’s reasons for not raising the claim until just prior to the hearing, but was not persuaded by them.

(c)    the Tribunal did not accept the applicant’s claims in respect of his brother’s political involvement, nor that the applicant or his family faced any difficulty as a result of any such involvement, by reason of the vague presentation of this claim and his concession at the hearing that brother’s claimed conduct had not resulted in any difficulty for him or his family: CB 386 [45].

(d)    by reference to relevant country information and its earlier findings, the Tribunal did not accept the applicant faced a real chance of persecution on the basis of his Tamil race, imputed political opinion or membership of particular social groups. Nor did the Tribunal consider there was a real chance of persecution if the applicant commenced work as a fisherman on his return to Sri Lanka: CB 386 [47]-[50].

(e)    considered the applicant’s claim he would be harmed by reason of his illegal departure from Sri Lanka and status as a failed asylum seeker. By reference to relevant country information, the Tribunal found the law was one of general application and would not result in treatment amounting to serious harm: CB 388 to 390 [51]-[57].

(f)    on the basis of these findings, the Tribunal did not accept the applicant was entitled to complementary protection, and its consideration included express reference to the likelihood of detention for illegally departing Sri Lanka and the circumstances of any such detention: compare Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22 at e.g., [5] per French CJ, Kiefel, Bell and Keane JJ.

16    Before the Federal Circuit Court, the applicant identified grounds of denial of procedural fairness and the Tribunal applying the wrong test. Understandably, neither of these grounds was much developed by the applicant, who represented himself. The Federal Circuit Court found (at [8] and [11]) that the applicant’s contentions to it really focused on the merits of the Tribunal’s decision.

17    The one claim before the Federal Circuit Court made by the applicant which should be considered is his claim (made for the first time when he appeared at the Federal Circuit Court hearing) that the Tamil interpreter who attended the hearing before the Tribunal failed to interpret some parts of the proceeding correctly: see the Federal Circuit Court decision at [12]-[13].

18    There are a number of decisions in this Court which establish that poor or incorrect interpreting can found a denial of procedural fairness: see SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6; Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; 183 ALR 188; Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230.

19    In SZRMQ at [27] Allsop CJ said:

The content of procedural fairness in relation to the standard of interpreting requires an evaluation of the fairness of the process. As I have said earlier, I agree with the expression of the matter by Robertson J and that, fundamentally, the question is one of evaluation as to whether the applicant has had a real and fair opportunity to put what she or he wanted to put, to understand what was being said to her or him, and to participate in the hearing in a way from which it can be concluded that the hearing was fair, and thus that administrative justice was done. The place for the appearance of justice being done lies in the rejection of the proposition that the matter is to be analysed solely by reference to causation directed by the reasons of the decision-maker. Even if it be the case that it cannot be demonstrated that there has been an error in the reasoning process materially caused by the misinterpretation, the misinterpretation may be such as to have prevented material and substantive information being communicated to the decision-maker in a way that leads to the conclusion that the hearing was not fair.

20    I do not consider the applicant has identified any arguable grounds concerning the quality and nature of the interpreting at his Tribunal hearing such as to justify an extension of time in this case. In his initial submissions on this application the applicant referred to the matter he had raised before the Federal Circuit Court – namely, that there was a misinterpretation of the words he was using to describe the location of the army camp he claimed to have been taken to – that it was near his “hometown” or “town” instead of “village”. In reply the applicant added that he tried to correct the interpreter many times, and you can hear that on the recording of the Tribunal hearing. He added that having an Indian Tamil interpreter (rather than a Sri Lankan Tamil interpreter) meant that the interpreter couldn’t understand some of his sentences and the applicant couldn’t understand some of the interpreter’s sentences. After some questions from the Court, the applicant explained that it was only a few times he had difficulties, and then he repeated what he said a couple of times. The applicant stated that the Tribunal member asked him to repeat things when they seemed unclear through the interpreter. The applicant stated the Tribunal member did not tell him he could change the interpreter.

21    There is nothing in the Tribunal’s reasons about any difficulties with the interpreter. Of itself that is not enough to disbelieve what the applicant has said to the Court, but it does indicate that the Tribunal itself did not perceive any particular issues, which were not clarified by having the applicant repeat matters.

22    Before the Court, the applicant was, through the Court-appointed interpreter, articulate, measured and focused in his submissions. Given his circumstances, and his focus, I extended him some latitude in explaining by way of submissions rather than evidence what he claimed the interpreting problems had been. If I had considered his explanation were sufficient to justify an extension of time, I would have made orders that he file an affidavit setting out those matters.

23    However, the applicant did not point to sufficient specific interpreting problems to persuade me there was even an arguable case of the threshold in SZRMQ being reached. Taking what he said to the Court at its highest, I am not satisfied he has an arguable case that the interpreting was of such a poor standard that he did not have a real and fair opportunity to put what he wanted to put to the Tribunal, nor that he might have been significantly misunderstood by the Tribunal.

24    The Minister correctly submitted that the applicant had not supported the argument with any evidence, including a failure to supply the transcript of the review hearing before the Tribunal. Of course marshalling such evidence (and, indeed, realising that he was required to) is no easy task for a self-represented person in the applicant’s position. If the interpreting errors seemed of sufficient gravity, absence of evidence itself at this stage (given the applicant is unrepresented) might not have been a reason to refuse to extend time. What the applicant said by way of submission could have been regularised, with assistance, into an affidavit, and appropriate supporting evidence provided. That may have been what was necessary to ensure the applicant had a fair opportunity to ventilate his arguments about poor interpreting, if those arguments otherwise seemed capable of demonstrating he had not had a fair opportunity to put his case before the Tribunal because of poor quality interpreting.

25    Turning now to the other two matters raised orally by the applicant on this application – whether the Tribunal took his young age into account, and whether it properly examined what might happen when he was sent back to Sri Lanka – I do not consider there is any arguable legal error apparent on the Tribunal’s reasons.

26    The applicant was just short of his 20th birthday at the time of the Tribunal hearing. At [41] of its reasons the Tribunal did advert to the applicant’s young age and took it into account but did not consider it excused the lack of detail or inconsistencies the Tribunal otherwise found to exist. And, in relation to its findings in [38], at [41] the Tribunal expressly found the applicant’s young age did not explain why he had not raised such a significant claim until the review hearing itself.

27    As to the Tribunal’s treatment of what might happen to the applicant on return, I accept the Minister’s submissions that the Tribunal dealt lawfully with the applicable country information concerning the treatment of Tamils forcibly returned to Sri Lanka where their asylum claims have failed. At [51] the Tribunal summarised his claim in much the same language as the applicant explained it to this Court on the application, and at [52]-[57] the Tribunal considered each of the attributes of the applicant (ethnicity, illegal departure, failed asylum seeker) and how he was likely to be treated, based on the applicable country information. The Tribunal then assessed Australia’s complementary protection obligations in the same context.

28    The applicant claimed the Tribunal had, adversely to his interests, accepted his evidence about his uncle being able to stand bail for him and used that as a reason to find he would not be held in remand for a long time on return, yet, the applicant contended, the Tribunal would not, at [38] of its reasons, believe him on matters which were favourable to him and advanced his claim. This is not an entirely accurate reflection of the Tribunal’s findings at [53] of its reasons. Even if it was, as I explained in court to the applicant, whether he was to be believed or not was a matter for the Tribunal, so long as the Tribunal’s approach was lawful and procedurally fair.

29    I accept the Minister’s submissions that no jurisdictional error is apparent in the way the Tribunal dealt with these issues.

Conclusion

30    Although the delay was small, and had the applicant lodged an appeal within time he would have had a right of appeal, the applicant must now persuade the Court it is appropriate to exercise a discretion in his favour to allow him to appeal. That involves consideration of the prospects of success of any appeal, a hurdle the applicant would not have had to surmount if he was within time. Looking at the matter as generously as it is appropriate to do so in the applicant’s circumstances, I am not persuaded any appeal has sufficient prospects of success to justify an extension of time.

31    The application will be refused. There is no basis in the material for anything other than the usual order as to costs.

Associate:

Dated:    28 August 2015