FEDERAL COURT OF AUSTRALIA

AGG15 v Minister for Immigration and Border Protection [2016] FCA 576

ORDERS

THE COURT ORDERS THAT:

1.    The time in which to commence the appeal is extended nunc pro tunc to 8 January 2016.

2.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an application for an extension of time in which to appeal from a judgment of the Federal Circuit Court.

2    At the hearing of the application, the parties made submissions as to the merits of the appeal, so that, in the event that an extension of time was granted, orders for the disposition of the appeal could then be made.

3    The appellant is a citizen of Pakistan. He arrived in Australia on 14 November 2012 as the holder of a Temporary Business Entry (short stay) visa issued under the Migration Act 1958 (Cth) (Act). He applied for a Protection (Class XA) visa (Visa) on 26 June 2013. In support of his application, the appellant claimed to have a well-founded fear of persecution by radical Shias in Pakistan because he was a Sunni Muslim and an active member of a party named Duwat-e-Islami. He claimed that radical Shias had shot him in 2010, robbed him in October 2012, and then shot at his house in November 2012 in an incident that resulted in the death of his mother.

4    A delegate of the First Respondent (Delegate) refused the appellant’s application for the Visa. The Delegate disbelieved the appellant’s claims that he had been shot, robbed, and then shot at again.

5    The appellant sought review of the Delegate’s decision before the Refugee Review Tribunal (Tribunal). The Tribunal affirmed the Delegate’s decision. The appellant then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The Federal Circuit Court dismissed the application for judicial review: AGG15 v Minister for Immigration and Border Protection [2015] FCCA 3128. The appellant seeks to appeal from that judgment.

6    I have granted the appellant an extension of time in which to commence the appeal. I nonetheless dismiss the appeal on its merits.

Extension of time

7    Rule 36.03(a) of the Federal Court Rules 2011 (Rules) requires that an appeal from the Federal Circuit Court’s judgment be brought within 21 days after “the date on which the judgment appealed from was pronounced or the order was made”.

8    Unusually, the question of when the Federal Circuit Court judgment was pronounced is a contentious issue.

9    The published reasons of the Federal Circuit Court state that the matter was heard on 20 November 2015. The reasons state that judgement was delivered on the same day. The reasons are expressed to be “Edited Ex Tempore Reasons”. The reasons were certified by the Associate to the Federal Circuit Court Judge on 27 November 2015.

10    In an affidavit sworn in support of his application, the appellant said (original spelling and grammar retained):

My asylum application was refused by immigration Department and Refugee Review Tribunal. I applied on appeal in Federal Circuit Court. My last hearing was on 20 November 2015. I came to know about the decision of Federal court just before Christmas when I received a letter from solicitor of First Respondent dated 14 December.

I have never received a letter or call by the Federal Circuit Court about the orders. During the last hearing on 20 November 2015, I was informed by the Honourable Judge that I will receive a call within two weeks and will be informed about the orders. But I did not receive any call letter.

11    The appellant attempted to lodge a Notice of Appeal in the Western Australia District Registry of the Court on 7 January 2016. He was informed by staff at the Registry of the Court that his appeal was out of time. On 8 January 2016, he filed the present application. A Notice of Appeal was filed separately on the same day.

12    Mr Burgess of the law firm Sparke Helmore Lawyers appeared on behalf of the Minister on the present application. Mr Burgess did not seek to cross-examine the appellant on his affidavit evidence, nor was any contrary affidavit material relied upon by the Minister. Mr Burgess frankly acknowledged that the Federal Circuit Court had not in fact delivered ex tempore reasons, or made any orders, or pronounced any judgment in the presence of the parties at its hearing on 20 November 2015. Mr Burgess informed the Court that his law firm had received a copy of the written reasons of the Federal Circuit Court by ordinary post under the cover of a letter dated 27 November 2015. The reasons record that the Federal Circuit Court made an order to the effect that the application for judicial review be dismissed.

13    Having regard to Mr Burgess’ acknowledgement as to what occurred (or, more precisely, what did not occur) on 20 November 2015, and in circumstances where the appellant’s affidavit evidence is neither contradicted nor challenged in cross-examination, I find that the judgment of the Federal Circuit Court was not made known to the appellant on or around 20 November 2015, nor on or around 27 November 2015. I find that the appellant was not otherwise informed of the fact that the Federal Circuit Court had dismissed his application until he received correspondence from the Minister’s solicitors on or around 14 December 2015. There was no evidence to suggest that the appellant was at fault in that respect.

14    The appellant seeks to appeal against “the whole of the judgment” of the Federal Circuit Court, being that Court’s judicial act of finally disposing with the proceedings before it. Very often the judicial act of disposing of a proceeding is affected by the making of a formal order dismissing the application by which the jurisdiction of the Court was originally invoked. Ordinarily, a judgment disposing of a proceeding is “pronounced” in the sense that it is communicated simultaneously to the parties to the proceeding.

15    Rule 36.03 recognises that there is a difference between the making of an order and the pronouncement of a judgment: see also the definition of “judgment” in the Dictionary to the Rules and s 4 of the Federal Court of Australia Act 1976 (Cth). For the reasons that follow, it is not necessary for me to determine precisely when the judgment of the Federal Circuit Court was pronounced or when the relevant order of the Federal Circuit Court was made.

16    The principles guiding the exercise of the Court’s discretion to grant an extension of time are well settled: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (at [348]-[349]), Quan v Minister for Immigration and Border Protection [2013] FCA 1239 (at [22]). The Court is to have regard to the adequacy of any explanation for the delay, the extent of the delay and any prejudice that might be suffered by the respondent if the appeal were to proceed. In WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 (WAAD), the Full Court said (at [7] and [9]):

[7]    The discretion to extend time is given for the purpose of enabling the court to do justice between the parties: Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262; Gallo v Dawson (1990) 93 ALR 479 at 480. So, for example, where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted.

[9]    An extension of time within which to file an appeal will not be granted without a consideration of the putative appellant's prospects of successfully prosecuting his appeal: Hughes at 264; see also by way of analogy Burns v Grigg [1967] VR 871 at 872.

17    The first respondent (Minister) acknowledges that he will not suffer any prejudice if the extension of time was granted. He nonetheless opposes the application on the ground that there is no adequate explanation for the appellant’s delay. It was submitted that the appellant was ignorant of the time frame in which to commence the appeal. It is true that ignorance of that kind is not ordinarily to be regarded as a satisfactory explanation: SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17.

18    However, although the appellant in the present case acknowledged that he was ignorant of the stipulated timeframe in which to commence an appeal, in my opinion his ignorance in that regard was not productive of any relevant delay. Rather, his delay is explained by his remaining ignorant that his application for judicial review had been dismissed by the Federal Circuit Court at all.

19    The appellant is a self-represented litigant. After receiving the correspondence from the Minister’s solicitor, he sought the assistance of a legal aid organisation which, I accept, did not provide him with legal advice or assistance other than to identify the appropriate form for his Notice of Appeal.

20    From 14 December 2015, the appellant acted reasonably promptly in commencing the appeal. Indeed, on the assumption that the judgment to be appealed from was “pronounced” on 14 December 2015, the time by which the appellant was to have commenced the appeal would have expired on 27 January 2016: see subrr 1.61(2), (4)(a) and (5) of the Rules. The appellant in that circumstance would not require an extension of time at all.

21    As I have said, it is not necessary for me to identify the precise date upon which the judgment was “pronounced” within the meaning of r 36.03, nor to identify the precise date upon which the time to commence the appeal expired. That is because the discretion to extend the time in which to commence an appeal is given for the purpose of doing justice between the parties. Consistent with that purpose, it is clear that an extension should be given, to the extent that an extension is required, I extend the time nuc pro tunc to 8 January 2016, being the date upon which the Notice of Appeal was filed.

22    This Court heard full submissions from the parties as to the substantive merits of the appeal. The parties each adduced evidence, being the materials to which the Federal Circuit Court Judge referred. I have taken the prima facie merits of the appeal into account in deciding to grant the appellant an extension of time, although I accord that consideration little weight on the application itself, having regard to the unusual and, I add, unsatisfactory, circumstances in which the judgment of the Federal Circuit Court came to be known to the appellant.

23    I now determine the substantive appeal on its merits.

Determination of the appeal

24    The proposed grounds of appeal are expressed as follows, with paragraph numbers inserted for convenience:

1.    I need the court to listen to me. I was sick when I came to the last hearing. My wife is not safe in Pakistan. I want to make an appeal to the Judge so that I can get justice.

2.    I want the Court to review my application. The legal system in Australia is very complex. I need asylum in Australia.

3.    The decision by the delegate of Immigration and RRT was wrong and was based upon the injustice and cruelty. I need justice. I am fearful of my life in Pakistan.

Ground One

25    The appellant confirmed that the first ground of appeal before this Court was intended to include a contention that the Federal Circuit Court erred in refusing to grant an adjournment of the hearing of his application for judicial review.

26    In order to succeed on this ground of appeal, it is necessary for the appellant to show that the exercise of the discretion of the Federal Circuit Court Judge to refuse the adjournment miscarried in the sense described in House v The King (1936) 55 CLR 499.

27    The appellant made the application for the adjournment at the commencement of the Federal Circuit Court hearing. In support of the application he handed to the Federal Circuit Court Judge a bundle of medical records. The Federal Circuit Court Judge refused to grant the adjournment on the basis that the documents did not evidence any current disability or illness in the appellant such as to prevent him from effectively participating in the hearing: cf NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 (at [6]-[10]); MZAMF v Minister for Immigration and Border Protection [2016] FCA 121 (at [14]).

28    On appeal, this Court was provided with the medical records to which the Federal Circuit Court referred. The records are correctly, albeit briefly, described in the judgment of the Federal Circuit Court (at [6]). Having read the records, I am of the view that it was open to the Federal Circuit Court Judge to take the view that the records did not disclose any reason why any medical condition suffered by the appellant would prevent him from participating in the hearing. There is nothing to suggest that the discretion to refuse the adjournment miscarried in the sense described in House v The King (supra). This ground of appeal fails.

Grounds two and three

29    The second and third proposed grounds of appeal, interpreted broadly, invite this Court to conduct its own review of the Tribunal’s decision, or perhaps even of the Delegate’s decision. Having regard to the appellant’s status as a self-represented litigant, it is perhaps not surprising that the proposed grounds of appeal should be expressed in that way. I indicated to both parties that I proposed to interpret these two grounds of appeal as intending to allege that the Federal Circuit Court made an appealable error in failing to identify the jurisdictional errors committed by the Tribunal that had fairly been argued in that Court. Neither party objected to the Court interpreting the grounds in this way.

30    In assessing the merits of these proposed grounds, it is necessary to have regard to the nature of, and limits on, the jurisdiction of the Federal Circuit Court and the grounds of review that were argued before it.

31    Sub-section 476(1) of the Act confers on the Federal Circuit Court the same original judicial review jurisdiction in relation to the Tribunal’s decision as the High Court has under paragraph 75(v) of the Constitution, subject to some exceptions that are not presently applicable. Its jurisdiction to grant relief by way of prohibition or mandamus, or to issue certiorari to quash the Tribunal’s decision, could only be exercised if the Tribunal was shown to have made a jurisdictional error: see s 474 of the Act and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76].

32    As was said in Craig v South Australia (1995) 184 CLR 163 (Craig) (at 179), an administrative tribunal will make a jurisdictional error if it:

… falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

33    The list of errors embraced by the phrase “jurisdictional error” is not exhaustive: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf). In Yusuf, McHugh, Gummow and Hayne JJ said (at [82]), of the list in Craig:

[82]    Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.

34    The Tribunal rejected the appellant’s claim that he was an active or prominent member of Dawat-e-Islami. Although the Tribunal accepted that the appellant had been harmed in the past, it did not accept that the incidents in which he had been harmed were related in any way or that the events were “anything more than random, indiscriminate acts by unknown assailants for unknown reasons”.

35    The application for judicial review was made on the following grounds (original spelling and grammar retained):

1.    The procedure is too quick. I don’t have a second chance to provide more evidence.

2.    The Tribunal don’t asked me to provide the original documents. I had all the original documents with me at all hearings.

3.    The Tribunal thinks it is not genuine to my evidence but the Tribunal did not communicate with my authority to confirm evidence documents.

4.    I had my passport since 2009, but that does not mean I had plan to travel with my mother to Umrah - I told the Tribunal my younger brother went to Umrah with my mother.

5.    I disagree the Tribunal comment, number 35. He is not the driver only, he is also the active member as well. Maybe the interpreter had a mistake to translate, He is active member that’s why target him, but luckily he saved his life.

36    The Federal Circuit Court correctly identified the first two grounds of review as involving a complaint that the appellant was deprived of the opportunity to provide the Tribunal with additional documentary evidence that he had in his possession at the hearing and that might have supported his claims. This ground was properly examined and rejected by the Federal Circuit Court Judge. At paragraph 13 of her reasons, the Federal Circuit Court Judge identifies numerous occasions in which the appellant had been given written invitations by the Tribunal to provide evidentiary material in support of his claims. It is not necessary for me to reproduce them here. I have read the written invitations and am satisfied that they were provided to the appellant.

37    The appellant cannot understand or read English. He relies on an interpreter to translate written materials to him. There is no evidence that the appellant complained before the Federal Circuit Court of being unable to have the written invitations translated to him, and he made no allegation of that kind before this Court. Rather, he said that he found the Tribunal procedures stressful and that the Tribunal hearing ended before he could provide the documents. The fact that the appellant had documents in his possession at the Tribunal hearing suggests that he had some understanding that documentary evidence could be provided to support his claims. Although he made a submission to this Court to the effect that he made a failed attempt to provide the documents to the Tribunal after the hearing had concluded, he did not allege that he had adduced any admissible evidence before the Federal Circuit Court to that effect. The Federal Circuit Court did not err in rejecting this ground of review.

38    The appellant’s third ground of review was clumsily expressed. It was fairly interpreted by the Federal Circuit Court Judge as a contention that the Tribunal erred by failing to make its own enquiries as to the authenticity of documents that were said to support his claims. The appellant made no submission before this Court to the effect that the Federal Circuit Court had misunderstood the import of this ground or any other ground of review. He claimed that the grounds of review had been drafted by a friend and that he could not understand their meaning, even with the assistance of an interpreter.

39    In Minister for Immigration and Citizen v SZIAI [2009] HCA 39; (2009) ALJR 1123; 259 ALR 429 (SZIAI), the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) considered various judgments of this Court in which the failure of an administrative Tribunal to make obvious enquiries had been expressed in terms of a failure to comply with a “duty to enquire”. The majority said (at [25]):

[25].    That term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

40    It was not necessary for the High Court to further explore those principles because, on the facts of the case before it, the further investigations it was alleged the Tribunal ought to have made would have yielded no useful result (at [26]).

41    In the present case, there is nothing to suggest that the Tribunal failed to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, in the sense described in SZIAI. The Federal Circuit Court Judge did not err in rejecting this ground of review.

42    By his fourth ground of review, the appellant alleged that the following passage from the Tribunal’s reasons evinced an error:

[31]    He told the Tribunal that he had never travelled outside Pakistan prior to travelling to Australia. He had no difficulties obtaining his passport or departing the country. He had already obtained his passport prior to these incidents as he planned to travel with his mother for Umrah.

43    In short, the appellant denies that he had planned to travel with his mother to Umrah. He submits the Tribunal erred in stating that he had obtained his passport in 2009 because he had planned to do so. Even if the Tribunal made a factual finding in that respect, the appellant has failed to demonstrate that the error is a jurisdictional error in the sense described in Craig or Yusuf. Moreover, the appellant did not dispute that his passport was indeed issued in 2009, nor did he dispute that he had no difficulties departing Pakistan. The inquiry as to whether the appellant was able to leave Pakistan without difficulty was a relevant one, having regard to the appellant’s primary claim that he was a “main target” of Shia extremists. The question of whether or not the appellant obtained his passport in 2009 for the specific purpose of travelling to another locality with his mother is an issue properly described by the Federal Circuit Court Judge as one upon which nothing turned.

44    The appellant’s fifth ground of review complained of an alleged error by the Tribunal in understanding and summarising the nature of the appellant’s factual claims. The particular passage complained of relates to the appellant’s claim that in 2010 he was driving the car of the Vice-President of Dawat-e-Islami when they were shot at. The Vice-President of the party was alleged by the appellant to have been killed in the incident and the appellant was also shot, but survived. The Tribunal said (at [35]):

[35]    The Tribunal asked why particularly are they targeting him and was told because he was always with the main person, driving his car, they always target the main people and that is why they are after him now. The Tribunal asked whether he was a main person in this party and was told that Chand was the main person and he was driving his car, he was a member of the party, he is a member of Dawat-e-Islami.

45    The appellant alleges that the Tribunal failed to appreciate that the appellant was not merely a driver for the Vice-President, but that he was himself an active member of Dawat-e-Islami and was, for that reason, also a target of Shia extremists. There is nothing in the passage complained of to indicate that the Tribunal misunderstood the appellant’s claim in that way. It is clear from a fair reading of the Tribunal’s reasons as a whole that it understood the appellant to be claiming that he had been targeted because of his active and prominent involvement in Dawat-e-Islami. The Tribunal ultimately rejected the appellant’s claims that he had been targeted for that reason, but the reasons do not disclose any jurisdictional error by the Tribunal, by asking itself the wrong question or failing to fulfil its statutory duty to undertake a “review” in the sense described by the High Court in SZIAI (supra).

46    The Federal Circuit Court Judge correctly interpreted the fifth ground of review as one alleging that the Tribunal had misinterpreted the appellant’s claims. The ground of review was rejected on the basis that it was “not apparent that the Tribunal misconstrued or failed to consider the Applicant’s claims” (at [29]). The Federal Circuit Court Judge was correct.

47    The reasons of the Federal Circuit Court disclose no appealable error in the exercise of its original jurisdiction to determine the application for judicial review brought by the appellant.

48    I dismiss the appeal. I will hear the parties as to costs.

Associate:

Dated:    24 May 2016