FEDERAL COURT OF AUSTRALIA

MZZWM v Minister for Immigration and Border Protection [2015] FCA 1305

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

(Revised from transcript)

1    This is an application for an extension of time to appeal from a decision of the Federal Circuit Court made on 30 October 2014 dismissing an application for judicial review of a decision made by the Refugee Review Tribunal on 31 October 2013. The formal written grounds relied upon by the applicant for an extension of time in his affidavit dated 15 September 2015 were (a) that he became aware that he could apply to the Federal Court from a friend on “Monday 14th September 2015”, (b) that he had applied to the Minister for Ministerial intervention, and (c) that he “was never informed” that he had an option of applying to the Federal Court before 14 September 2015. His grounds changed substantially during the course of the hearing of this application, and it is plain from what he said at the hearing that some of the grounds that he put in his earlier written application were false. During the course of the hearing the applicant also produced a letter from Victoria Legal Aid which had been sent to him on 26 November 2014 in which he was told in clear terms that he could continue with an appeal to the Federal Court.

2    The applicant had until 20 November 2014 to file a notice of appeal from the decision of the Federal Circuit Court which had been made on 30 October 2014. Rule 36.03 of the Federal Court Rules 2011 (Cth) gave the applicant 21 days within which to appeal from the decision of the Federal Circuit Court. The principles to apply in considering whether to exercise the Court’s discretion to extend the time within which to file an appeal under the former O 52 r 15 of the Federal Court Rules were considered by the Full Court in Parker v R [2002] FCAFC 133, where at [6]-[7] the Court said:

6    In the civil jurisdiction, Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The matters which attracted his Honour’s attention were set out at 348-349:

1.    applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

2.    action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

3.    any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

4.    however, the mere absence of prejudice is not enough to justify the grant of an extension; and

5.    merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

7    There is no reason why these matters or guidelines, even though they were composed with respect to an application in a civil matter, should not also apply (and several authorities have decided that they do apply) in the criminal jurisdiction, save that where the liberty of the individual is at stake, the Court may be a little more lenient to an applicant in the exercise of its discretion.

Among the matters relevant to the exercise of the discretion is the extent of the delay and whether there is an adequate explanation for the delay. In the present case the applicant’s delay is considerable and requires explanation.

3    The applicant’s former explanation in the documents he had filed before the hearing was essentially that he had not been aware that he could appeal to the Federal Court until informed of that by a friend “on Monday 14th September”. However, that was not accurate. It was plain from the letter of 26 November 2014 from his lawyer that the applicant had known that he could appeal to the Federal Court since at least 26 November 2014. The letter also referred to an earlier conversation between the lawyer and the applicant which the latter said had occurred on 19 November 2014. The letter requested the applicant to call the lawyer to discuss the options which had been set out in the letter and which had included the option of an appeal to the Federal Court. The letter had asked the applicant to contact the lawyer by no later than 12 December 2014.

4    The fact is that the applicant was represented at the Federal Circuit Court by Victoria Legal Aid and that he continued to have legal representation at least until 4 March 2015 when Ambi Associates applied on his behalf to the Minister for intervention in the public interest on the basis that there were unique or exceptional circumstances in his case. However, even if the evidence on his application for an extension of time had been as he had stated in his affidavit (that is, without regard to the 26 November letter) his assertion of not having been told until the following September of being able to appeal would need to be considered in light of all of the other evidence and circumstances. It would be improbable in the circumstances that the applicant had not been told of the right to appeal to the Federal Court by Victoria Legal Aid after the decision of the Federal Circuit Court, or by his lawyer in March 2015 when an application was made to the Minister for Ministerial intervention. However, as I have said, the letter of 26 November 2014 shows plainly that the applicant did know long before September 2015 that he could appeal to this Court and no adequate explanation has been given for the delay to warrant an extension of time. The applicant also relied upon having made an application in March 2015 for Ministerial intervention but the fact that he had made a request for Ministerial intervention is not sufficient explanation for not pursuing other available avenues of review: see Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1622, [12]; Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198, [14]-[15]; M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520, [24], [36].

5    Those considerations are sufficient to reject the application for an extension of time in which to file an appeal and there is no need, in those circumstances, to consider the additional grounds that had been raised by the applicant at the hearing for the extension of time which had not been put in the formal written application. However, I should make two observations about the additional grounds. The first concerns the statement he made at the hearing that he was not in a position to obtain legal advice because he needed to find lawyers who would provide advice for free. That claim, to the extent that it relates to his inability to know about an appeal, cannot be accepted as accurate on the evidence. I have already referred to the letter of 26 November 2014 which contradicts his assertion, but it is clear from the material filed on behalf of the Minister that the applicant had access to lawyers during the period in question when he says that he did not. The second observation relates to a statement made at the hearing that the applicant was not in a position to work and, therefore, not in a position to pay for legal advice that would have informed him about the ability to appeal and the timeframe within which to appeal. It is unnecessary to make a finding about the truthfulness of the statement that the applicant did not have work during the relevant period, but I would not accept his assertion because his claim would seem to be contradicted by the material that he had relied upon in his application to the Minister for intervention. The letter to the Minister from his lawyers of 4 March 2015 indicated an ability to work and of having worked and of having paid tax upon his income. There was also a letter of reference, dated 27 February 2015, from what appeared in the letter to be a then current employer of the applicant. The language used in the letter from the referee speaks in the present tense and stands in contrast with the claim that he made in support of this application of not being able to work to earn the money needed to engage a lawyer.

6    It may also be desirable to add that none of the applicant’s proposed grounds of appeal are sufficient to justify an application for an extension of time. The proposed notice of appeal relies upon the following grounds:

1.    That there is a jurisdictional error in the Federal Circuit Court decision.

2.    The reasons provided the second respondent to the first respondent in support of the second respondent, 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.

None of the grounds are particularised and none identify any error in the decision of the Federal Circuit Court or, if it be relevant, in the decision of the Tribunal.

7    The applicant is a Sri Lankan Tamil of Hindu religion who entered Australia as an irregular maritime arrival on 5 June 2012. He applied for a protection visa on 14 September 2012 and was assisted by lawyers and migration agents before a delegate of the Minister and before the Tribunal. He was represented by Victoria Legal Aid in the Federal Circuit Court and had lawyers acting for him in his application to the Minister for intervention. He claimed a fear of persecution because of “his Tamil race, his membership of particular social groups comprising Sri Lankan Tamils and Tamils from the north or east of Sri Lanka and his real and imputed political opinion arising from his race and his former residence in a predominantly Tamil region”. He had also submitted that he feared persecution as a member of a social group comprising “Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia”. He also sought complementary protection based on the claimed facts giving rise to his fear of persecution.

8    The applicant had given evidence of encounters with Sri Lankan authorities which was partly accepted by the Tribunal but largely rejected because of the Tribunal’s concerns with his evidence. The applicant sought to challenge the Tribunal’s findings at the hearing on his application to this Court for an extension of time. The Tribunal’s concerns had included: (a) that he had given more than one version of events regarding the period of his detention at Colombo airport and that he had failed to draw this to the Tribunal’s attention; (b) the Tribunal’s view of the implausibility of his claim that the authorities would allow him to leave Colombo airport and then send groups of men to look for him in the days following; (c) that the Tribunal did not accept that he was suspected of being associated with the LTTE simply for having a music video clip commemorating Heroes Day on his mobile phone; (d) the Tribunal’s view of the implausibility of his claim that the applicant’s brother would have been able to get a message to him via a mobile phone telling him not to come home given the applicant’s account of what happened when men came to look for him at the family home and remained there for several hours; and (e) the Tribunal’s view about the implausibility of his claim that the applicant would fail to mention, in the context of his initial protection visa application, that Sri Lankan authorities physically harmed his family members by hitting them with a gun when they came looking for the applicant. The applicant challenged the Tribunal’s findings but any appeal to this Court would not be a review of the merits of the decision. The Tribunal was able to make findings by drawing upon such other matters as country information to reject the applicant’s various claims based on his illegal departure, his Tamil ethnicity, where he lived and his profile as a failed asylum seeker.

9    The applicant had raised four grounds of appeal before the Federal Circuit Court where he was represented by counsel and Victoria Legal Aid. The first ground was that the Tribunal had failed to consider his claim to fear persecution on account of his “real and imputed political opinion arising from … his residence in a predominantly Tamil region”. The Federal Circuit Court observed, however, that the Tribunal had dealt with this claim as it had been put by the applicant by finding that he was not from a predominantly Tamil region. The Federal Circuit Court rejected the applicant’s argument that the Tribunal should have identified and considered a claim based on residence in a predominantly Tamil village. The Federal Circuit Court said in this regard at [20]-[21]:

20.    The Applicant argued on the hearing of this matter that the Tribunal should have considered his claim to have an imputed political opinion based upon his former residence in a predominantly Tamil village, rather than a region, and that such claim clearly arose on the material before the Tribunal.

21.    It is difficult to see where such claim was contained in the evidence before the Tribunal, and how such a claim would have resulted in a different Tribunal decision. The Applicant claimed to fear persecution because he would be suspected of being an LTTE sympathiser. This claim (of real and imputed political opinion) was put on the basis of his living in a Tamil Region and belonging to a social group of Sri Lankan Tamils and Tamils who lived in a certain geography (the North or East of Sri Lanka). The Tribunal understood this part of the Applicant's claim and dealt with it in the terms in which the claim was put, which was at a regional level. The claim as put was set out in the Decision Record at paragraph 22.

The proposed notice of appeal identifies no error in the way in which the Federal Circuit Court dealt with this ground of appeal which had been raised in that Court from the decision of the Tribunal.

10    The second ground raised by the applicant before the Federal Circuit Court was that the Tribunal had failed to apply the real chance test but that ground was abandoned. The third ground was that the applicant had been denied procedural fairness because he had not been given an opportunity to be heard on the question of why he had failed to correct an error in his statutory declaration regarding the period of time for which he had been detained at the Colombo airport. The Federal Circuit Court, however, found that the Tribunal did not accept that there was an error in the statutory declaration but, rather, an inconsistency between the evidence and the other evidence which had been given by the applicant. At [27] the Federal Circuit Court said:

As can be seen from the preceding paragraphs the Tribunal put to the Applicant the inconsistency in the Applicant's evidence. The Tribunal did not accept there was an error. Rather, the Tribunal was concerned by the inconsistency in the evidence of the Applicant, and as can be seen in paragraph 32 of the Decision Record, puts that squarely to the Applicant. It is not an obligation of the Tribunal to expose its thought processes to the Applicant, but rather to draw to the attention of the Applicant matters it perceives as a critical issue. Here that was a matter of inconsistent evidence.

There is no reason to doubt the correctness of the decision of the Court in concluding that there was no breach of ss 424A, 424AA or 425 of the Migration Act 1958 (Cth).

11    The fourth ground which had been relied upon by the applicant had been that he had been denied procedural fairness because the Tribunal did not put to him that he was lying when he claimed to have been detained at the airport for a period of hours. The Federal Circuit Court observed, however, that the Tribunal was not required to put to the applicant that he was lying in order to disbelieve him. At [29] the Federal Circuit Court said:

The Applicant argues as to ground 4 of the Amended Application that the Tribunal denied the Applicant procedural fairness because the Tribunal did not put to the Applicant that which it was obliged to do, namely that his claim that he was detained at the airport for hours might be disbelieved. Had the Applicant been given notice of that possibility by the Tribunal, the Applicant, it is argued, could have explained why he should be believed. This ground cannot succeed. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs the High Court held:-

“It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”

There is no basis to conclude that the Federal Circuit Court erred in its conclusion on this ground or that is misunderstood what had been said by the High Court in SZBEL.

12    Accordingly, the application will be dismissed.

Associate:

Dated:    23 November 2015