FEDERAL COURT OF AUSTRALIA

AHI15 v Minister for Immigration and Border Protection [2016] FCA 64

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted an extension of time in which to file and serve a notice of appeal until the date of this Order.

2.    The draft notice of appeal annexed to the applicant’s application for an extension of time filed on 2 November 2015 be taken to be a notice of appeal filed by the applicant as required by Order 1.

3.    The applicant have leave to file and serve an amended notice of appeal by 17 February 2016.

4.    The first respondent have leave to file a notice of contention by 24 February 2016.

5.    Costs of the application for the extension of time in which to file and serve a notice of appeal be costs in the cause.

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

REASONS FOR JUDGMENT

EDELMAN J:

Introduction

1    The applicant in this matter seeks an extension of time under r 36.05(1) of the Federal Court Rules 2011 (Cth) within which to file a notice of appeal from a decision of the Federal Circuit Court. The Minister accepts that there would be no prejudice to the first respondent arising from the extension of time apart from the usual prejudice that arises from delay. The Minister also accepts that the issues involve important alleged rights of the applicant, that the delay was not of great length, and that the delay is adequately explained. The sole basis upon which the application was resisted was the lack of sufficient merit in the proposed grounds of appeal.

2    During oral submissions, counsel for the Minister accepted that it was arguable that the Federal Circuit Court erred in relation to two of the issues arising from the substratum of the grounds of appeal. Counsel submitted, however, that those arguable errors could be addressed by matters which would, effectively, be contained in a notice of contention. Having regard to all the factors described above (the length and explanation for the delay, the lack of substantial prejudice, and the importance of the issues to the applicant) these are matters that should be addressed at an appeal rather than an application for leave to extend time to file a notice of appeal.

Outline of the facts and background

3    The facts and background in this case, as relied upon by the Minister, can be described briefly for the purposes of this leave application.

4    On 12 September 2013, a delegate of the Minister refused to grant a Protection (Class XA) Visa (Protection Visa) to the applicant under s 65 of the Migration Act 1958 (Cth) (Migration Act).

5    On 24 September 2013, the applicant applied to the Refugee Review Tribunal (which is now part of the Administrative Appeals Tribunal) (the Tribunal) for review of the delegate’s decision. The applicant attended the Tribunal hearing on 17 February 2015, accompanied by his representative and assisted by an interpreter in the Tamil and English languages. The applicant’s representative also submitted both pre-hearing and post-hearing written submissions to the Tribunal.

6    The applicant claimed that he had satisfied the criteria for a Protection Visa set out in s 36 of the Migration Act and Schedule 2 of the Migration Regulations 1994 (Cth). The Tribunal summarised the applicant’s claim, in broad outline, as follows. The applicant said that he feared harm from the Sri Lankan army, authorities and para-military groups because he supported the Tamil National Alliance (TNA) and the local TNA candidate in the 2010 parliamentary elections. He said that he had been interrogated and threatened by the army in March 2010, and at the end of 2011, and questioned by a special taskforce in 2011. The applicant also claimed to have been living in fear with relatives until he left Sri Lanka in 2012. He said that after he left Sri Lanka an armed group came to his house enquiring about him. He also claimed that he feared harm as a failed asylum seeker who had supported the TNA.

7    By a written decision on 5 March 2015, the Tribunal affirmed the decision of the delegate not to grant the visa. The Tribunal’s findings included the following.

(1)    The applicant began his involvement with the TNA in February 2010.

(2)    The applicant had some basic knowledge of the TNA, supported the TNA and a TNA member of Parliament (Mr Seenithamby) at the 2010 parliamentary election. However, the Tribunal concluded that there was an inconsistency in the applicant’s evidence that (i) he had been “keeping his distance from the party” and reducing public activities and conduct, and (ii) the extent to which he claimed that he had been involved with the activities and work for the TNA, particularly after a “beating incident” when the applicant said he was beaten by the army in March 2010 (but which incident the Tribunal concluded lacked credibility). The Tribunal referred in particular to the applicant’s written statements which referred to him “keeping his distance” from the TNA after this time.

(3)    The applicant’s evidence about his first meeting with Mr Seenithamby lacked credibility and was vague. It was also not consistent with the evidence which the Tribunal expected would have been given by someone who claimed to campaign for him and who knew him personally.

(4)    The translation of a 2012 letter from Mr Seenithamby had no weight because it was inconsistent with the applicant’s claims, lacked credibility and had a number of inaccuracies and mistakes.

(5)    The applicant supported TNA at the 2010 parliamentary elections, and supported Mr Seenithamby, by door knocking and putting up posters and attending meetings. The applicant could not be expected to live discreetly to avoid harm. However, his level of interest in the TNA or politics was doubted by the Tribunal. He was not known to Mr Seenithamby nor was he a high profile campaigner, or high profile in the party. The Tribunal did not accept that the applicant attended the national conference in 2012.

(6)    The Tribunal did not accept the applicant’s evidence that he went into hiding from the March 2010 incident. Instead, he (i) continued his election work by door knocking and putting up posters, (ii) went to work on the family farm every day, and (iii) claimed that he attended a national conference in May 2012 attended by over 600 people.

(7)    The Tribunal did not accept the applicant’s evidence that people came looking for the applicant after he left Sri Lanka.

(8)    The applicant’s cousin was a member of the Liberation Tigers of Tamil Eelam (LTTE) and was involved with meetings of LTTE. The applicant’s cousin disappeared in 2006. The applicant’s cousin had also asked the applicant to attend meetings but the applicant did not attend. The Tribunal did not accept that the applicant would be imputed with any LTTE or anti-government sentiment because of (i) his Tamil ethnicity, (ii) support for the TNA, (iii) or any perception that he was involved with the LTTE.

(9)    Upon return to Sri Lanka, the applicant would be questioned, charged and bailed for his illegal departure. But the Tribunal concluded that all Sri Lankan nationals are treated in this manner by entry procedures into Sri Lanka and failed asylum seekers are not specifically targeted for adverse attention or mistreated. The Tribunal was not satisfied that questioning, arrest and poor conditions in remand, or any subsequent monitoring or questioning, or the application of a penalty for illegal departure amounted to systematic and discriminatory conduct as required by s 91R(1)(c) of the Migration Act.

8    The Tribunal was not satisfied that the applicant faced a real chance of serious harm upon return to Sri Lanka due to his race, political opinion, membership of a particular social group or unlawful departure from Sri Lanka or real risk of significant harm under s 36(2)(aa) of the Migration Act.

9    On 26 March 2015, the applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The applicant relied upon four grounds of judicial review before the Federal Circuit Court. Without setting out all of the particulars of those grounds, they involved claims that the Tribunal had (1) failed to follow proper procedures in the determination of the application; (2) taken into account irrelevant considerations; (3) failed to take into account relevant considerations; and (4) misapplied the legal meaning of complementary protection.

10    The particulars of ground one (effectively, procedural unfairness) were as follows:

The Tribunal used one alleged phrase of the Applicant (written on his behalf by the solicitor in the written report) namely ‘kept a distance’ to nullify all the statements of the Applicant that appeared to be at odds to this phrase. This was repeated by the Tribunal. The Tribunal failed to ask the Applicant what he meant with the phrase, as this meaning can have several meanings, one of which could be construed as kept at distance as far as the authorities are concerned, not to mean completely broken up with the political party. This could have clarified the position.

11    The particulars to the second ground (irrelevant considerations) were as follows:

The fact that the Applicant was able to travel freely before the time when the applicant became associated with a political party has been used to indicate that the Applicant was never in a position of persecution and therefore all his subsequent statements lack credibility. The same applied for his ability to get a passport. The Tribunal failed to take into account the persecution occurred when the Applicant is identified, which only happens in the area the applicant is active in politics. Addition of several unrelated events were used to reduce the credibility of the Applicant.

12    The particulars to this second ground seem to be a reference to the discussion by the Tribunal of the lack of travel restrictions upon the applicant between 2003 and 2008. The Tribunal referred to the applicant’s travel to Qatar for work between 2003 and 2008 before concluding that “the fact that he was not detained in 2008 or 2009 suggests that he was not of interest to authorities as LTTE as country information is that LTTE were rounded up for questioning, arrest and detention and sent to rehabilitation centres”.

13    The Federal Circuit Court judge dismissed a number of the applicant’s grounds as “in effect, a merits review”. In particular, the Federal Circuit Court’s conclusions in relation to the particulars quoted above included the following:

(1)    the reference to the phrase ‘kept a distance’ “was not the turning point of [the Tribunal’s] findings on credibility”; and

(2)    the references to freedom of travel and movement was “one of those strands that has justified the finding of the Tribunal that [it did] not accept the applicant as a credible witness”.

14    In this Court, the applicant sought leave to extend time to file a notice of appeal on nine grounds. These grounds substantially overlap. Some of the grounds are simply overarching descriptions of all of the others. For example the first ground is simply an allegation that the decision of the Tribunal was affected by jurisdictional error and the decision of the Federal Circuit Court was in error. Similarly, the second ground is an allegation that the Tribunal or the Federal Circuit Court took into account irrelevant matters and failed to take into account relevant matters. Again, ground four alleges that the decision of the Tribunal was “unreasonable”. That expression is sometimes used in a protean way to describe various different errors including where the decision maker has committed “a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 366 [72] (Hayne, Kiefel and Bell JJ); see also at 350 [27] (French CJ).

15    Although the grounds of appeal were substantially overlapping, and were not clearly expressed, when an applicant is unrepresented (as the applicant was at the relevant time) and has very little English it is necessary to consider the grounds of appeal as a whole and to examine the substratum of those grounds: SZORZ v Minister for Immigration and Citizenship [2011] FCA 593 [7] (Perram J). It is sufficient for this application to focus upon the two particulars quoted above where the applicant’s grounds of appeal effectively allege that the Federal Circuit Court erred by dismissing those grounds for judicial review.

The legal principles to be applied in applications for leave to extend time

16    Rule 36.03 of the Federal Court Rules 2011 (Cth) provides for a 21 day time limit for filing a notice of appeal. The Court has a wide discretion to extend that period. As Katzmann J said in Dunlop v Fishburn (No. 3) [2012] FCA 315 [9], that discretion is constrained only by the interests of justice and the subject-matter and purpose of the legislation. Section s 37M(1) of the Federal Court of Australia Act 1976 (Cth) provides that the overarching purpose of the civil procedure provisions is the facilitation of the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible.

17    In Hunter Valley Developments v Cohen [1984] FCA 186; (1984) 3 FCR 344, 349-350, Wilcox J described some of the factors to consider in an application for leave to extend time within which to file a notice of appeal. His Honour was considering an exercise of discretion under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). That section, in similar terms to rule 36.05(1) in this case, does not provide for any particular factors to consider in the exercise of discretion to extend time. For that reason, the factors relied upon by Wilcox J have been repeated in many cases under rule 36.05 or its predecessor: see, for example, Parker v The Queen [2002] FCAFC 133 [6] (the Court); SZHIU v Minister for Immigration and Citizenship [2009] FCA 101 [20] (Cowdroy J); SZQZR v Minister for Immigration and Citizenship [2013] FCA 69 [29] (Griffiths J).

18    The relevant factors described by Wilcox J include the following:

(1)    the extent of the delay;

(2)    whether the applicant has an acceptable explanation for the delay including action taken by the applicant in the meantime;

(3)    whether the grant of leave would cause prejudice to the respondent and, if so, the extent of that prejudice; and

(4)    whether the grounds of appeal have merit.

19    Although some of these factors are sometimes expressed as “requirements” before leave will be granted, none is a precondition. Rule 36.05(1) involves an exercise of discretion having regard to all relevant factors.

20    In written submissions for the Minister it was submitted that a grant of leave could not be made unless the grounds of appeal had merit. In oral submissions, counsel for the Minister clearly explained that she only submitted that “merit” was one factor to take into account. I should explain why the oral submission must be preferred. The “merit” of a ground of appeal, or the extent to which it is reasonably arguable, is not a fixed quantity. There are degrees of merit. Although it would be extremely unusual for leave to be granted where all grounds of appeal are utterly hopeless, the extent of the merit that is required will often be affected by the other factors relevant to the exercise of discretion.

21    Another way of putting this point is to say that a court might be more easily satisfied that a ground of appeal is sufficiently arguable (or has sufficient merit) to permit leave to be granted if the application involves a very short delay, with a good explanation, and with no prejudice to the respondent. The exercise of discretion in this way is similar to the assessment of a “prima facie case” in the grant of an interlocutory injunction. The “question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience”: Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238, 261 [67] (the Court).

22    The same conclusion was reached by Katzmann J in Dunlop v Fishburn (No. 3) [2012] FCA 315 [9]-[10]. In the course of explaining the factors described above, her Honour said that the merits of the appeal are a matter “to be taken into account”. In SZQZR v Minister for Immigration and Citizenship [2013] FCA 69 Griffiths J also treated the merits of the substantive appeal as merely one matter to be considered. At [31] his Honour added that additional relevant considerations include the length of the relevant delay in bringing the proceedings, and the nature of the rights and interests the subject of the proceedings.

The extent of the delay, the explanation for delay, the lack of prejudice to the Minister and the rights and interests involved

23    Factors involving the extent of the delay and the explanation for delay are important. It is often remarked that legislated time limits are not to be ignored and that an applicant should usually show an “acceptable explanation for the delay”.

24    In this case, the Minster accepted that the applicant had provided an acceptable explanation for the delay. The Applicant has explained these reasons in his affidavit evidence. In summary, the decision of the Federal Circuit Court from which the applicant seeks leave to extend time to file a notice of appeal was delivered orally on 3 September 2015. The applicant was advised by the lawyer who appeared for him on that day that he would have to wait for the written reasons for judgment before he could decide whether to appeal the judgment of the Federal Circuit Court. The applicant’s lawyer told him that the lawyer needed a copy of the written reasons for judgment before advising on any grounds of appeal and prospects of such an appeal.

25    The lawyer advised the applicant that written reasons for judgment was not received until 21 days after the hearing on 3 September 2015. The applicant’s lawyer then prepared a notice of appeal and attempted to file it. But it was rejected for filing by the Registry because the applicant was appealing 21 days after the decision was orally delivered.

26    The applicant says that his lawyer then prepared a leave to appeal application but was told that leave was not required and instead to prepare another application appealing the decision. The applicant says that his lawyer then told the applicant that the lawyer was unable to continue representing the applicant and that he should seek the services of another lawyer. After taking legal advice, the applicant became aware that he needed to make an application for leave to extend time to file a notice of appeal.

27    The applicant says that he “was denied an opportunity to lodge an appeal to the Federal Court within the time required due to no fault of mine”.

28    Counsel for the Minister properly accepted that the applicant had a good reason for what the first respondent said was a 38-day delay in filing the draft notice of appeal. Further, the nature of the rights involved are of great importance to the applicant. Counsel for the Minister also accepted that there was no prejudice to the Minister arising from the delay other than the usual prejudice for the administration of justice where a matter is delayed. The merits of the grounds of appeal must be assessed in light of these circumstances.

The merit of the grounds of appeal

29    The applicant has nine proposed grounds of appeal. As I have explained, many of those grounds of appeal overlap substantially.

30    In written submissions on this application, counsel for the Minister supported the reasoning of the Federal Circuit Court that the applicant’s submissions had invited “impermissible merits review and does not establish relevant error” in the Federal Circuit Court. However, taking into account the substratum of the litigation, at least two of the proposed grounds direct attention to alleged errors by the Federal Circuit Court in relation to the Tribunal’s failure to afford procedural fairness and taking into account of irrelevant matters. As counsel for the Minister properly conceded in oral submissions, these two matters are not matters involving “impermissible merits review”.

31    The first of these two matters appears to be raised by the applicant’s third ground of appeal which is, in effect, a ground that the Federal Circuit Court erred by failing to find that the Tribunal “did not conduct the hearing in a fair and just manner and/or according to law”. This appears to be a reference to a similar ground before the Federal Circuit Court (ground 1) which was particularised as set out above and which concerned the failure by the Tribunal to afford “proper procedures” (by which is meant procedural fairness) because the Tribunal failed to ask the applicant what he meant by the phrase “keeping his distance”.

32    In the Federal Circuit Court, his Honour explained that this was “simply one of a number of matters that the Applicant had spoken of to which the Tribunal did not accept his evidence” and that it was not “the turning point of their findings on credibility”. As counsel for the Minister accepted, this does not address the allegation that the applicant was not given the opportunity to respond to the meaning of this phrase.

33    His Honour may have been correct in his assessment that the Tribunal’s reliance upon the applicant “keeping his distance from the party” was only one factor in the Tribunal’s assessment of the applicant’s credibility. One instance where the Tribunal made reference to this point was in a section where the Tribunal explained that it “was concerned about the applicant’s evidence in a number of respects”. But it is not appropriate on this application for leave to attempt to assess the significance of this factor, nor to try to assess whether it could have made a difference to the Tribunal’s decision if it had not been taken into account. Nor is it appropriate on this application for leave to assess whether there were other reasons, not mentioned by the Federal Circuit Court, by which this ground might have been dismissed.

34    It suffices to say that it is sufficiently arguable for a grant of leave, in the circumstances of this case, that the Tribunal’s reliance upon a phrase written by the applicant’s solicitor which was not raised with the applicant would amount to procedural unfairness. I should emphasise that no argument was made before me about the correctness of the applicant’s assertion that the phrase was written by his solicitor and was not raised with him at the hearing.

35    The applicant’s second ground of appeal alleges that the Tribunal took into account irrelevant matters. This seems to be an allegation that the Federal Circuit Court erred by dismissing the applicant’s second ground of judicial review which had asserted that the Tribunal erred by taking into account the applicant’s ability to travel freely before becoming associated with a political party.

36    Again, although the Federal Circuit Court described the second ground of judicial review as involving “merits review” it was not a complaint about the weight given to a finding of fact. It was an allegation of taking into account irrelevant matters. It is therefore arguable that the Federal Circuit Court erred in its conclusion that this ground of judicial review should be dismissed because this matter was “one of those strands that has justified the finding of the Tribunal that [it did] not accept the applicant as a credible witness”. Again, it is not appropriate on this application for leave to attempt to assess whether any error by the Federal Circuit Court in relation to this issue could have made a difference to the Tribunal’s decision. Nor is it appropriate to attempt to assess whether there were other reasons, not mentioned by the Federal Circuit Court, by which this ground might have been dismissed.

Conclusion

37    This application for leave to extend time within which to appeal is resisted by the Minister solely on the ground that the appeal has no prospects of success. In the circumstances of this case, including the length of the delay, the reasons for the applicant’s delay, and the lack of prejudice to the Minister, I consider that at least two of the issues underlying the grounds of appeal are sufficiently arguable for an extension of time for leave to file a notice of appeal.

38    Counsel for the Minister properly conceded that if leave were given in relation to any of the grounds, then leave should be given for all the grounds of appeal. A consideration of the other grounds at this stage would add little, if any, time to the hearing of the appeal particularly where many of the grounds overlap substantially and where the applicant, who is now legally represented, would have an opportunity to amend his grounds of appeal.

39    The application for leave to extend time to file a notice of appeal is allowed.

Associate:    

Dated:    10 February 2016