FEDERAL COURT OF AUSTRALIA

SZUVX v Minister for Immigration and Border Protection [2016] FCA 301

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant’s interlocutory application be dismissed.

3.    The applicant to pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT (Delivered ex tempore, revised from transcript)

WIGNEY J:

1    The applicant is a citizen of Fiji, but has resided in Australia for many years. There is a long and somewhat tortuous history of dealings between him and the respondent, the Minister for Immigration and Border Protection (Minister), concerning the applicant’s immigration status. This application relates to an unsuccessful application by the applicant for a Protection (Class XA) visa (protection visa). The Minister refused to grant the applicant a protection visa most recently on 4 June 2014. That decision was affirmed by the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal). The applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court (Circuit Court). That application was dismissed by the primary judge on 26 June 2015.

2    The applicant has now applied for an extension of time to appeal the judgment of the primary judge. For the reasons that follow, that application must be dismissed with costs.

Background

3    The applicant’s lengthy immigration history is of some potential relevance to his extension of time application.

4    The applicant arrived in Australia on 19 November 1987 and was granted a visitor’s visa. He was granted a permanent resident visa in the early 1990’s. On 11 August 2011, however, that visa was cancelled on character grounds as a result of the applicant’s criminal history. The cancellation was affirmed on review by the Tribunal on 4 November 2011.

5    Just over a month later, on 16 December 2011, the applicant applied for a protection visa. That application was refused by the Minister’s delegate on 9 January 2012. The applicant applied to the Tribunal for a review of that decision, but was unsuccessful. On 28 February 2012 the Tribunal affirmed the decision to refuse to grant a protection visa to the applicant.

6    That was by no means the end of the applicant’s attempts to secure a protection visa. Almost two years later, on 31 December 2013, the applicant lodged a second protection visa application. That course was available to the applicant because, since the initial refusal of his protection visa application, the provisions in the Migration Act 1958 (Cth) (the Act) concerning protection visas had been amended. In summary, a new and alternative criterion for a protection visa was inserted in the Act.

7    That criterion, referred to generally as the “complementary protection criterion”, was, in simplified terms, that the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. In SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 the Full Court held, in effect, that s 48A(1)(a) of the Act did not preclude an applicant who had previously unsuccessfully applied for a protection visa from applying again on the basis of the new complementary protection criterion.

8    That is exactly what the applicant did. Unfortunately for him, however, that application was no more successful than his first application. The Minister’s delegate again refused to grant a protection visa to the applicant. That refusal was affirmed by the Tribunal on 3 July 2014.

The Tribunal’s review and decision

9    The claims that the applicant advanced in support of his protection visa application were summarised by the Tribunal in its reasons (Reasons) (at [15]) in the following terms:

[The applicant] feared unknown people in Fiji due to political comments he had made whilst in detention and jail in Australia; he feared returning to Fiji because of his Indian Fijian heritage; and that he also feared returning to Fiji because he would not be able to find accommodation or employment.

10    The applicant agreed that this was a fair summary of his claims, but added that he also feared returning to Fiji because of a “data breach” that had occurred on the Department of Immigration and Border Protection’s website. The applicant contended, in effect, that the data breach would compound his difficulties in finding employment and accommodation in Fiji.

11    The Tribunal found that none of the applicant’s claims satisfied it that the applicant was a person to whom Australia owed protection obligations in terms of the complementary protection criterion. The Tribunal found that the applicant’s claims concerning the political comments he had apparently made whilst in immigration detention and gaol were vague and unsubstantiated in several respects. It concluded that “there [was] no evidence before it to enable it to be satisfied that his [the applicant’s] opinions had been expressed and/or that they would be of interest to the Fijian authorities or anyone else in Fiji” (Reasons at [32]).

12    In relation to the applicant's claims based on his Indian heritage, the Tribunal accepted that Indian Fijians may be subject to some discrimination in Fiji. It found, however, that “there [was] no evidence before the Tribunal that discrimination against Indian Fijians and/or discrimination based on the caste system amounts to significant harm” (Reasons at [33]).

13    In relation to the applicant's claims concerning the data breach and his inability to find employment and accommodation, the Tribunal accepted that there had been a data breach and that some of the applicant’s personal information had been available on the Department’s website. That information may have been accessible in Fiji. That information included the applicant’s name, date of birth, nationality and details of his detention. The information did not include his criminal record.

14    The Tribunal found, however, that potential employees or persons offering accommodation in Fiji would not have the “wish or the ability to access” the limited information that had been available on the website. Accordingly, the Tribunal did not accept that the applicant would be subject to discrimination by such persons on the basis of the “leaked” information.

15    The Tribunal ultimately found, on the evidence before it, that “there is not a real risk that the applicant will be unable to subsist in Fiji due to having no family or support there and/or his criminal record, and/or discriminated on the basis of his data being leaked by the Department”. The Tribunal accordingly found that it was not satisfied that the applicant was a person in respect of whom Australia had protection obligations in terms of the complementary protection criterion (Reasons at [42]).

The Circuit Court proceedings and judgment

16    The applicant’s judicial review application in the Circuit Court contained the following four grounds (Judgment at [16]):

1.    Procedural unfairness as the [T]ribunal was in breach of Section 429 of the Migration Act.

2.    The decision of the [T]ribunal was so unreasonable that its [Wednesbury] unreasonableness.

3.    Failure of the Tribunal to take into account and give proper if any weight to the material evidence presented.

4.    The Tribunal relied on evidence that was incorrect at the time of decision making as it did have [contrary] evidence before it.

17    It can readily be seen that the grounds of the applicant's application in the Circuit Court were expressed in very broad terms. It would appear, however, that at the hearing of his application the applicant made more detailed submissions and provided more detailed particulars of the asserted errors. Those submissions, in general terms, coincided with the four grounds in the review application.

18    The primary judge considered and rejected each of the applicant's four grounds of review, and the submissions made in support of them.

19    The basis of the applicant’s first ground of review, the procedural fairness ground, was that Serco guards had accompanied him to the Tribunal hearing. It would appear that the applicant did raise a concern about the presence of Serco officers during the Tribunal hearing. The Tribunal’s reasons reveal, however, that the Tribunal explained to the applicant why the guards were present and confirmed to the applicant that the Serco guards were bound by confidentiality obligations.

20    The primary judge referred to the decision of the High Court in SZAYW v Minister for Immigration (2006) 230 CLR 486 (SZAYW) concerning the requirement in s 429 of the Act that the Tribunal hearing be in private. The primary judge found, in effect, that there was no breach of s 429 of the Act because the presence of the Serco guards was “reasonably required for the purposes of or in connection with the performance of the Tribunal’s functions”: see SZAYW at 497[25]. The primary judge concluded that the Tribunal dealt with the issue concerning the presence of the Serco guards in an “unexceptional way” and no error was disclosed.

21    The applicant’s contention that the Tribunal’s decision was unreasonable appeared to be based on an allegation that the Tribunal had pre-judged his review application. The primary judge rejected that allegation as having no foundation. Otherwise, the primary judge found that the Tribunal’s conclusions were open to it and based on rational grounds. His Honour accordingly found that the applicant had not established that the Tribunal’s decision was unreasonable.

22    Grounds 3 and 4 of the applicant’s review application, as ultimately argued by the applicant, appeared to primarily relate to the so-called data breach and the implications it may have for the applicant in relation to his prospects of securing employment and accommodation in Fiji. It would appear, however, that the applicant's arguments amounted to little more than complaints about the Tribunal’s factual findings concerning this aspect of his evidence. The applicant claimed that the Tribunal had relied on a letter from the Secretary of the Department which itself was unreliable, and that other information relied on by the Tribunal was incorrect. The primary judge concluded, however, that the applicant had not established any error on the part of the Tribunal in dealing with the data breach claims.

The extension application – Grounds and submissions

23    In support of his application for an extension of time the applicant relied on a statutory declaration which included the following statement:

I’m lodging an Appeal to Federal Court of Australia on the grounds that I wasn't afforded procedural fairness as stated in the application to the court. I am lodging an extension of time also as the welfare officer Kim for P-10 Silverwater (MRRC) C.C. Could not find a J.P. in time and I have been moved to Junee C.C. Since and only now have had the [opportunity] to do so, in the front of a J.P [sic]. A brief reason for the Interlocutory Application and the orders sought within are on grounds on fresh evidence that was not available for [assessment] for the Minister for Immigration and Border Protection & Anors.

24    A draft notice of appeal filed by the applicant contains the following proposed ground of appeal:

Procedural fairness by not allowing more time for the Applicant to prepare the case and appointing a lawyer to assist with the case due to the [applicant's] mental health [issues].

25    The applicant, who was not legally represented, did not file any written submissions. At the hearing, however, the applicant made detailed and wide-ranging oral submissions. Those submissions at times extended well beyond the written material the applicant had filed. At times, his submissions descended into what could properly be characterised as contestable and contested evidence from the bar table.

26    Ultimately, the applicant sought an adjournment with a view to demonstrating or resolving some of the factual issues or disputes that he had raised in his submissions, but which were properly the subject of evidence. For the reasons given later, that adjournment application was refused.

27    In seeking to explain the delay between the Circuit Court judgment and the filing of the application for an extension of time, the applicant expanded on the evidence contained in his statutory declaration. As earlier indicated, the applicant’s submissions extended beyond what could properly be called submissions, and amounted to evidence from the bar table.

28    In any event, the applicant’s explanation revolved around his incarceration, the lack of resources available to him in gaol, including his difficulty in getting to see a welfare officer, and the difficulty in getting access to a justice of the peace. He also referred to the fact that he was moved between different gaols and the fact that he was not a trained lawyer.

29    The applicant ultimately submitted that he had adequately explained the delay. He also submitted that the Minister had not pointed to any prejudice he would suffer as a result of the delay. He maintained that the interests of justice favoured the grant of the extension of time. As for his proposed appeal, the applicant contended that his appeal had substantial merit.

30    Many of the applicant’s submissions concerning the proposed appeal were directed to the broad contention that he was denied procedural fairness in the Circuit Court. In that regard, the applicant contended that, given the position he was in as a result of his incarceration and mental health issues, he was given inadequate time to prepare and present his case in the Circuit Court. He submitted that at some stage during the Circuit Court proceedings the primary judge gave him the expectation that he might appoint a pro bono lawyer to assist him. He also complained that the primary judge had led him to expect that he could make submissions beyond his four particularised grounds of review in his filed application, but that the primary judge ultimately only considered the four grounds of review.

31    The applicant also advanced submissions concerning the conduct of his review application by the Tribunal which broadly corresponded with the four grounds of his judicial review application in the Circuit Court. He submitted, in effect, that the Circuit Court erred in dealing with those four grounds. It should be noted that the applicant’s submissions in that regard went well beyond the single ground set out in his draft notice of appeal.

32    In relation to ground one of his judicial review application, the applicant contended that the primary judge misconstrued what the High Court said in SZAYW concerning s 429 of the Act and private hearings in the Tribunal. The applicant submitted, in effect, that his complaint in the Tribunal was that it was only necessary or reasonable to have one guard, not two, present at the hearing. In his submission, if only one guard was present the duty of confidentiality would be more closely complied with.

33    In relation to the second ground of his review application, the applicant made a number of submissions apparently directed to the contention that the Tribunal had pre-judged his application. Those submissions appeared to travel well beyond the evidence and submissions that were advanced before the primary judge. They were not supported by any evidence in this Court.

34    Finally, the applicant submitted that the Tribunal had failed to properly consider or had made mistakes in the consideration of his claims insofar as they concerned the so-called data breach. It was implicit, in the applicant’s submissions in that regard, that his case was that the Circuit Court had erred in failing to find that the Tribunal had not properly considered this aspect of his claims. The applicant ultimately submitted that the Tribunal had not considered his claims in a logical manner, had misconstrued the complementary protection criterion and had failed to properly exercise its jurisdiction in relation to his review application.

should the applicant be granted an extension of time?

35    The considerations relevant to the exercise of the Court's discretion to extend time include, but are not limited to, whether the Court is satisfied that there is an acceptable explanation for the delay, whether there would be any undue prejudice to the respondent if the Court were to grant an extension of time, and whether there is any merit in the proposed appeal: SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725 at [21]; SZNFR v Minister for Immigration and Citizenship [2009] FCA 851 at [12]; SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 at [13]-[15]; and, Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [13]-[14].

36    The applicant's delay in filing his appeal or extension application in this case is significant. By reason of r 36.03(a)(i) of the Federal Court Rules 2011 (Rules), a notice of appeal was required to be filed within 21 days of the date on which the judgment was pronounced or the order was made. In the applicant's case, that cut-off date was 17 July 2015. The application for an extension of time was filed on 30 September 2015. It was therefore over 10 weeks out of time.

37    The applicant's explanation for the delay was, with the greatest respect, manifestly deficient. As earlier indicated, his explanation revolved essentially around his incarceration. His main complaint, at least in his written material, was that he could not get access to a justice of the peace at the gaol in which he was detained at the time. He filed his application once he had moved to a different gaol and was able to have a justice of the peace witness his statutory declaration. It is unclear exactly when he moved gaols.

38    In any event, what the applicant does not explain is what, if any, steps he took to get around the apparent difficulty in locating a justice of the peace. By reason of r 36.05(3)(c) of the Rules the applicant’s application was required to be accompanied by an affidavit. The applicant could have sworn such an affidavit before someone other than a justice of the peace. There is a very long list of persons who may witness affidavits and statutory declarations. There was no evidence that the applicant made any attempt to find out who other than a justice of the peace could witness his affidavit, or made any attempt to get anyone else to witness his affidavit.

39    Equally, he could have attempted to file an application without an affidavit or with an unsworn affidavit. He could also have sought some other assistance to overcome the difficulties about which he complained. The applicant's general complaints concerning inadequate resources and the fact that he was not a lawyer do not provide an adequate explanation for the delay.

40    More fundamentally, the main difficulty for the applicant is that his proposed appeal appears to have no merit whatsoever.

41    The sole ground of appeal the applicant proposes to rely on, at least as set out in the draft notice of appeal, is that he was denied procedural fairness. There are apparently two grounds upon which he contends that he was denied procedural fairness: the first is that he was not allowed more time to prepare his case; the second is that a lawyer should have been appointed to assist him, given his mental health issues.

42    As to the first of those matters, there is no evidence that the applicant was unfairly denied sufficient time to prepare his case. Indeed, it appears that the primary judge did provide some accommodation to the applicant given his circumstances. At [18] of the Judgment the primary judge recorded the following in that regard:

This matter has had a somewhat protracted procedural history. The applicant has been held on remand awaiting criminal proceedings. On 20 April 2015 I made procedural orders in order to overcome difficulties the applicant had encountered in preparing for a hearing of this matter. He sought a further adjournment on 3 June 2015, but I rejected that application. The applicant has been given several opportunities to amend his application and produce evidence in support of it. The opportunities he has been afford are, in my view, sufficient.

43    The applicant has not sought to adduce any evidence to counter the primary judge's conclusion that he had been afforded sufficient opportunities to present his case. His case does not rise above bare assertion.

44    The Minister provided the Court with a chronology of appearances in the Circuit Court. Ultimately, the applicant did not dispute that chronology. That chronology reveals, amongst other things, that the matter was initially listed for final hearing on 27 March 2013. Directions were made for the filing of any amended application or evidence. On 12 March 2015, the listing of the final hearing was changed to 20 April 2015. It would appear that on 20 April 2015 the hearing commenced, but was ultimately adjourned to 3 June 2015. The applicant was granted leave to file an amended application and evidence. It also appears that no amended application and no further evidence was filed by the time the hearing resumed on 3 June 2015. The applicant made a further adjournment on 3 June 2015. The primary judge refused to adjourn the hearing again. The primary judge reserved his judgment subject to listening to a sound recording of what happened at the Tribunal hearing.

45    The chronology of events in the Circuit Court supports the statement by the primary judge that the applicant was afforded sufficient opportunities to present his case.

46    As for the applicant's reference to his mental health issues, there is no evidence concerning the applicant's mental health issues. The Minister accepted that the applicant did refer to his mental health issues before the primary judge. Some documents were apparently tendered relating to that issue. The tender of those documents was rejected. What, in any event, is missing, is any evidence that the applicant's presentation of his case was in fact impaired in any material way by any mental health issues, or that the Circuit Court failed to adequately deal with that issue.

47    As for the fact that no lawyer was appointed to the applicant's case, there is no evidence that the applicant sought to have a lawyer appointed to assist him, or squarely raised before the primary judge that he was unable to properly present his case without a lawyer. The applicant's submissions to the effect that the primary judge led him to expect that a lawyer would be appointed were disputed by the Minister and not supported by any evidence. In any event, given that the applicant had no absolute right to have a lawyer appointed, and the absence of any evidence of any prejudice suffered by any expectation that may have arisen on the applicant's part in relation to the appointment of a pro-bono lawyer, there is no basis for finding any denial of procedural fairness on the basis of any such expectation.

48    It's perhaps regrettable that many unsuccessful applicants for protection visas do not have access to a lawyer. That is particularly so where the applicant is in detention or is incarcerated, as was the case with the applicant. There is, however, no recognised right to legal representation in Australia. Nor is it necessarily the case that a person who is required to appear unrepresented in judicial review proceedings is, by virtue of that fact alone, to be considered to have been denied procedural fairness. The applicant’s contention that he was denied procedural fairness in the Circuit Court has no merit.

49    The applicant's contention that the primary judge erred in dealing with his four grounds of review also has no merit. His submissions on this point did not rise significantly beyond bare assertion of error on the part of the primary judge. No substantive arguments were advanced.

50    There is no basis for the applicant’s assertion that the primary judge erred in construing s 429 of the Act. There is equally no basis upon which to conclude that the primary judge erred in dismissing the contention that the Tribunal prejudged the applicant’s review application, or that the primary judge erred in rejecting the applicant’s contention that the Tribunal had failed to properly consider his claims, insofar as they concerned the data breach or his access to accommodation and employment in Fiji.

51    Given the fact that the applicant is unrepresented, the reasons of the Tribunal and the judgment of the primary judge have been closely considered to determine whether the applicant might have some other arguable grounds of appeal. There is no apparent error in either the Tribunal's exercise of its review jurisdiction or the primary judge's consideration and determination of the applicant's judicial review application.

52    It may readily be accepted that the Minister would not suffer any prejudice should the applicant be granted an extension of time to file an appeal. That consideration alone, however, does not warrant an extension of time. It would be a rare case where the Minister could demonstrate any prejudice from an extension of time to appeal a judicial review application relating to a decision of the Tribunal. If the absence of prejudice to the Minister were a sufficient reason to grant an extension of time, applicants in the position of the applicant would almost invariably secure an extension of time. That would substantially undermine the provisions of the Rules dealing with the time in which an appeal must be filed.

53    There is also a significant public interest in bringing finality to litigation. That includes litigation concerning a person's immigration status, including judicial review proceedings relating to decisions of the Tribunal concerning protection visas. The somewhat extraordinary procedural history relating to the applicant's immigration status supports a conclusion that there is very much a public interest in bringing to finality the applicant's litigation concerning his claim for a protection visa.

54    Finally, and related to the public interest in bringing proceedings such as this to finality in a timely fashion, it is necessary to say something briefly concerning the applicant's adjournment application. The main basis for the adjournment application was to enable the applicant to obtain a copy of the transcript of the Circuit Court proceedings. The applicant contended that this would assist him in making out his case that he was denied procedural fairness in the Circuit Court. The Minister opposed the adjournment application. As noted earlier, the adjournment application was refused.

55    The chronology and history of this matter reveals that the primary judge afforded the applicant sufficient time to prepare his case. The matter was adjourned in the Circuit Court on a number of occasions. The Circuit Court took the applicant’s circumstances, including his incarceration, into account in granting those adjournments. More significantly, in this Court, the applicant has had many months to obtain the transcript or put on other evidence concerning any alleged unfairness in the Circuit Court. He had 10 weeks between the Circuit Court judgment and his filing of the extension of time application in which to obtain that material. More significantly, he has had almost five months since the filing of his extension application to seek to obtain that material. He has given no explanation for his failure to take timely steps to obtain the transcript or file other evidence. No further delay is justified.

56    In all the circumstances, an extension of time for the applicant to file his proposed appeal is unwarranted. It would largely be an exercise in futility and would be contrary to the public interest in bringing finality to this litigation in a timely fashion. The extension application is accordingly dismissed.

The applicant’s interlocutory application

57    The applicant has also filed an interlocutory application in which he seeks the following orders:

1.    Court orders Minister to grant Refugee/Protection status due to fresh evidence.

2.    The matter be remitted back to the Department for fresh Application review in light of the new evidence.

3.    Injunction to prohibit Minister of Immigration & Border [Protection] from Removing the applicant from Australia.

58    The interlocutory application is plainly misconceived.

59    It is sufficient to say that the Court has no jurisdiction to make either of the first two interlocutory orders. Nor are those orders properly sought by way of an interlocutory application in proceedings concerning a proposed appeal. The applicant has filed no evidence and made no submission capable of supporting the making of those orders. There was no “new evidence”.

60    As for the third order, it was perhaps open to the applicant to seek to restrain the Minister from removing him from Australia pending the hearing of his extension of time application. There was, however, no evidence (or even any suggestion) that the Minister intended to remove the applicant prior to the conclusion of these proceedings. In any event, since the proceedings have now concluded, there is no longer any basis for making such an order. The interlocutory application is accordingly dismissed

DISPOSITION

61    The applicant’s extension of time application and interlocutory application are both dismissed. There is no reason why costs should not follow the event. Accordingly, the applicant should be required to pay the costs of both applications as agreed or assessed.

62    The orders of the Court are, accordingly:

1.    The application for an extension of time be dismissed.

2.    The applicant’s interlocutory application be dismissed.

3.    The applicant to pay the costs of the first respondent, as agreed or assessed.

Associate:

Dated:    1 March 2016