FEDERAL COURT OF AUSTRALIA

AAQ15 v Minister for Immigration and Border Protection [2016] FCA 963

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs fixed in the sum of $5,000, pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth).

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This is an application for an extension of time and for leave to appeal from orders made by a judge of the Federal Circuit Court of Australia on 27 April 2016, by which his Honour dismissed an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). His Honour ordered that the applicant pay the first respondent’s (the Minister’s) costs and disbursements fixed in the sum of $3,416. The Tribunal had, on 4 February 2015, affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2    For the reasons that follow, the application for an extension of time and for leave to appeal must be dismissed with costs (fixed in the sum of $5,000).

History of the proceedings

3    On 1 July 2012, the applicant, a citizen of Sri Lanka, arrived in Australia as an unauthorised maritime arrival. On 16 November 2012, he applied for a protection visa.

4    On 8 January 2014, a delegate of the Minister refused the grant of a protection visa.

5    On 23 January 2014, the applicant applied to the Tribunal for review of the delegate's decision. He provided written submissions prior to the Tribunal hearing, and oral submissions at the hearing, assisted by an interpreter and a solicitor. On 4 February 2015, the Tribunal affirmed the delegate’s decision refusing the grant of a protection visa to the applicant.

6    On 25 February 2015, the applicant commenced judicial review proceedings in the Federal Circuit Court. On 19 March 2015, a judge of the Federal Circuit Court summarily dismissed the applicant’s application at the first court date.

7    On 16 April 2015, the applicant filed an application for an extension of time and leave to appeal in this Court. On 13 August 2015, a judge of this Court made orders by consent setting aside the orders made on 19 March 2015, and remitting the matter to the Federal Circuit Court, differently constituted, for determination of the application.

8    The note accompanying the 13 August 2015 consent orders indicated that the Minister accepted that the summary dismissal of the application for review on the first return date before the Federal Circuit Court, without prior notice to the applicant, constituted error of the kind identified in the Full Court decisions of Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 and SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88; (2015) 229 FCR 317. The setting aside of the first decision of the Federal Circuit Court highlights the importance of due process and procedural fairness in judicial review proceedings, even if the ultimate outcome is the same. For the reasons given below, no such complaint could be made of the treatment of the applicant’s case before a second judge of the Federal Circuit Court, referred to as the primary judge in these reasons.

9    On 27 April 2016, the primary judge heard the application for review, dismissing it with costs. Detailed but concise reasons were given ex tempore, and revised for publication. The orders of the primary judge refusing relief and ordering the applicant to pay the Minister’s costs are now challenged by the present proceedings in this Court.

10    The applicant requires leave to appeal to this Court because the orders made on 27 April 2016 by the primary judge constituted an interlocutory decision by reason of rr 44.12(1)(a) and 44.12(2) of the Federal Circuit Court Rules.

11    Rule 35.13 of the Federal Court Rules 2011 (Cth) provides that a written application for leave to appeal must be filed within 14 days of the date on which the judgment is pronounced or order made, or such other date as is fixed for that purpose by the Court. No other date was fixed, so the application for leave to appeal from the 27 April 2016 decision of the primary judge was required to be made by 11 May 2016. The application was filed in this Court on 23 May 2016, 12 days late, and therefore required the granting of an extension of time.

Applicable principles

12    The Full Court has relatively recently confirmed that the factors which the Court should generally take into account in determining whether to grant an extension of time include the length of delay and whether there is an acceptable explanation, the merits of the appeal, and any prejudice to the opposing party, although the mere absence of prejudice is not sufficient: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].

13    The delay in filing the present application was relatively small, and although this remained unexplained, it was not suggested by the Minister’s solicitor that this of itself was a sufficient reason to refuse an extension of time if the application was otherwise meritorious. The Minister’s solicitor also properly conceded that there was no relevant prejudice. The main barrier advanced by the Minister to the grant of an extension of time was the asserted lack of merit in the proposed appeal, which in turn relies upon the prospects of the underlying application for review succeeding.

14    The discretion to grant leave in s 24(1A) of the Federal Court of Australia Act 1976 (Cth) is unfettered. However, the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399-400 accepted a line of authority as to the general guidance to be applied which a court should normally accept in the exercise of the discretion. That guidance comes down to two tests:

(1)    whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered on appeal; and

(2)    whether substantial injustice would result if the leave were refused, supposing the impugned decision to be wrong.

15    The two tests are not in separate compartments but are cumulative and also bear on each other so that the degree of doubt which is sufficient in one case may be different from that required in another. There will continue to be cases raising special considerations and, accordingly, a court should not regard its hands as tied by the guidance in the two tests. Neither party has suggested that any special consideration applies to this case, and none is apparent.

Proceedings before the primary judge

16    The primary judge clearly and concisely spelt out the nature of the applicant’s case before the Tribunal and why he had failed in his case for merits review in the only forum able to consider his case in that way. I therefore take the liberty of reproducing key parts of his Honour’s reasons, rather that attempting to paraphrase them (footnotes omitted):

2.    … [The applicant’s] claims for protection appeared to be based on his asserted membership of the particular social group of goldsmiths. Those claims were also interwoven with his Tamil ethnicity. …

…

The applicant’s claims

9.    The applicant’s claims for a protection visa revolve around an alleged incident in which he was robbed of gold by Sri Lankan soldiers, and alleged subsequent events. In the statement dated 25 October 2012 accompanying his application for a protection visa, the applicant claimed that:

a)    prior to leaving Sri Lanka, he worked at his brother’s jewellery business in Colombo;

b)    in October 2011, he was assaulted and robbed of the gold that he was carrying at a military checkpoint. He was asked to hand over his ID and mobile telephone. Before these items were returned, he believes that his address and telephone number were recorded by the soldiers (October 2011 incident);

c)    in January 2012, he received a mysterious telephone call in Sinhalese. He believes that the soldier called him in order to confirm that he lived at the address he had provided during the October 2011 incident;

d)    after he left Sri Lanka for Australia, two Singhalese men (whom he believes to be army officers) went to his home and asked his mother about his whereabouts. She told them that he was in Colombo. The applicant believes these men intend to extort and abuse him; and

e)    the army would subject him to extortion, abuse, mistreatment, humiliation and degrading treatment if he were to return to Sri Lanka. The applicant believes this is because he is a Tamil whom the army knows to be in possession of gold.

10.    The account provided by the applicant in his 25 October 2015 statement was elaborated and expanded upon in the course of his claims made at the departmental interview, his Tribunal hearing, and also in the submissions made on his behalf by the Refugee Advice and Casework Service dated 20 February 2013, and 2 January 2014. He made the following additional claims:

a)    internal relocation would not be reasonable because the nature of his work requires him to travel to and from his village to collect gold. He knows no other trade and would not be able to acquire different work in Colombo;

b)    he fears that if he were to return to Sri Lanka he would be subjected to violence or physical ill-treatment by individuals or groups involved in attacks directed at Tamils; and

c)    he faces a risk of harm as a failed asylum seeker.

The Tribunal’s findings

11.    The Tribunal did not accept that the applicant is a person to whom Australia has protection obligations on Convention grounds or complementary protection grounds (ss.36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act), respectively). This was because, despite accepting certain aspects of the applicant’s evidence, certain other aspects were inconsistent or implausible. The Tribunal had concerns about the applicant’s credibility and did not believe significant parts of the applicant’s claims. In particular:

a)    in his original statement to the Department, the applicant claimed that there were multiple soldiers who assaulted him in the October 2011 incident. He stated that the soldiers told him that they would keep the gold and cause greater problems for him if he complained. At the Tribunal hearing he said that only one soldier assaulted him and that the [sic] he did not understand what the soldiers had said because they spoke Sinhalese;

b)    the applicant was unable to name the checkpoint at which the October 2011 incident allegedly occurred. The Tribunal found this “somewhat concerning” in light of the alleged events and his claim to have passed the checkpoint on a number of occasions between 2002 and 2012;

c)    in his original statement, the applicant had stated that he and his brother were forced to use their own gold to make jewellery for the clients whose gold had been stolen in the October 2011 incident. However, he told the Tribunal that he and his brother had purchased gold for that same purpose;

d)    the applicant had allegedly passed the same checkpoint carrying gold following the October 2011 incident. The Tribunal considered it “somewhat implausible” that the applicant would continue to expose himself to the same risk in the circumstances;

e)    assuming his account was true, the Tribunal considered the applicant’s explanation for why the Sinhalese soldier had telephoned him was “far-fetched”;

f)    the applicant’s evidence about the number of soldiers who visited his family after the October 2011 incident, how many times they visited and whom they spoke to changed over time;

g)    the applicant had limited technical knowledge about working with gold and his passport specified that he was a “waiter”. This was inconsistent with his claim to have worked in this field since leaving school; and

h)    the Tribunal noted the applicant’s submission that he would not be able to move freely within Sri Lanka, and would have to modify his behaviour to avoid persecution. However, the Tribunal determined, in light of the applicant’s written and oral evidence, that the applicant had enjoyed freedom of movement within Sri Lanka over a significant period during and after the civil war.

12.    Overall, the Tribunal was not satisfied that the applicant had a well-founded fear of Convention-related persecution in Sri Lanka. This was because:

a)    lack of credibility: The Tribunal found the applicant’s evidence to be “overwhelmingly untruthful”. The inconsistencies detailed above caused the Tribunal to dismiss the applicant’s claims about the October 2011 incident and all the events that allegedly ensued as “a concoction”;

b)    status as a “goldsmith” or person “in possession of wealth”: The Tribunal accepted that the applicant was a goldsmith who had sometimes worked with valuable amounts of gold and jewellery. However, the Tribunal was not satisfied on the evidence before it that the applicant’s status as a “goldsmith” or “person who might be perceived to possess wealth” gave rise to a real chance of persecution in Sri Lanka;

c)    status as a Tamil, Tamil male or young adult Tamil male: The Tribunal considered the applicant’s suggestion that his claim was Convention-related because the soldier(s) concerned would not treat a Sinhalese person the way he had been treated. However, having regard to the facts, the Tribunal was not satisfied that a Convention-related factor was “an essential and significant factor in the harm he claims to fear”. The Tribunal referred to country information in addition to the applicant’s own evidence, and concluded that the applicant would not face a real chance of serious harm for reasons of being a Tamil, Tamil male or young adult Tamil male;

d)    status as an illegal departee: the Tribunal noted that the applicant claimed to have left Sri Lanka illegally. Although the applicant stated that he did not fear harm on this basis, the Tribunal examined country information indicating that returnees who left the country in breach of Sri Lanka’s immigration laws are routinely arrested at the airport, held on remand for a few days, brought before a Court, granted bail, fined and questioned on return to their home area. However, it found that the immigration laws were of general application and applied in a non-discriminatory manner. It did not accept that the conditions which the applicant might face in detention amounted to significant harm or serious harm so as to satisfy s.91R(2); and

e)    status as a failed asylum seeker: Despite his submissions dated 2 January 2014 making a bald reference to fearing persecution as a failed asylum seeker, the applicant did not make any claims in relation to this factor at or after the hearing. Nevertheless, the Tribunal considered this factor. On the basis of the country information, the Tribunal was not satisfied that the applicant would be persecuted for reasons of being a failed asylum seeker.

13.    The Tribunal was not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm. This was because:

a)    having dismissed as a “concoction” the totality of the applicant’s claims about the October 2011 incident and ensuing events, it was unnecessary for the Tribunal to assess these facts through the lens of complementary protection;

b)    for the reasons given in relation to Convention-related harm, the Tribunal was not satisfied on the evidence before it that the applicant faced a real risk of significant harm in relation to his profession as a goldsmith or perceptions that he deals with wealth, or his being a ‘failed asylum seeker’; and

c)    the applicant did not identify any fears in relation to his status as an illegal departee. Nevertheless, the Tribunal examined country information and the evidence before it and determined that the applicant would not face any sanctions, treatment or other act/omission inconsistent with the Articles of the International Covenant on Civil and Political Rights, or satisfying s.36(2A), on the basis of this status. The Tribunal was satisfied that any potential sanctions came within the exception set out in s.36(2B)(c).

14.    As a result, the Tribunal did not accept that the applicant was a person to whom Australia owed protection obligations on Convention or complementary protection grounds.

17    The primary judge then carefully considered the applicant’s case for judicial review, noting that it comprised a single ground of review in a show cause application alleging nothing more specific than “legal error”, devoid of any identification of what that error might be. His Honour noted that no attempt had been made to file any amended application, nor any written submissions in support of the applicant’s case. At the hearing of the application, the primary judge advised the applicant of his concern that his ground of review as expressed, and in the absence of particulars, was effectively meaningless.

18    The applicant’s response to the primary judge’s comments about the problems with his case was to point to his financial situation and his difficulty in obtaining legal assistance. The applicant informed the primary judge he had recently consulted a lawyer, who was considering his case. The applicant sought an adjournment, which the primary judge inferred was for the purpose of allowing for further consideration by the lawyer. That application for an adjournment was refused upon the basis that the applicant had been given ample time to prepare for the 27 April 2016 hearing (which I note had been set down just over six months earlier on 24 September 2015). I can see no error on the part of his Honour in declining that adjournment application. Indeed, the soundness of that decision by the primary judge is reinforced by what the applicant said to me at the hearing of his application on 15 August 2016, referred to below.

19    The primary judge, correctly in my view, characterised the pleaded ground of review as having no substance and amounting to nothing more than an attempt to engage the Federal Circuit Court in impermissible merits review. As his Honour pointed out, the Tribunal had close regard to the applicant’s statement and claims and squarely addressed each of them. Moreover, the Tribunal went beyond the claims that were overtly made, and considered factors not expressly raised which might have given rise to protection obligations. His Honour noted that the applicant was assisted by a solicitor at the Tribunal hearing, who made submissions on his behalf. In short, as his Honour correctly observed, the Tribunal carried out its fact-finding function, and it was not a function of the Federal Circuit Court to re-exercise that function or to disagree with such findings. That observation applies with equal force and effect to this Court.

20    As a result of the primary judge’s careful review and consideration of the Tribunal’s decision, his Honour was unable to discern any jurisdictional error. Having carefully considered the Tribunal’s reasons for myself, I agree with the conclusions that his Honour reached in that regard. Indeed I am unable to see that there is any legal error, or for that matter, factual error, at least of any moment. Certainly none was identified by the applicant either orally or in writing, apart from an alleged denial of procedural fairness by the primary judge in refusing an adjournment application, detailed below.

The application for an extension of time and leave to appeal in this Court

21    The present application for an extension of time and leave to appeal filed on 23 May 2016 states that the grounds of the application for an extension of time are set out in the accompanying affidavit. Below that statement, under the heading “Grounds of application”, the following is stated:

Extension of Time

1.    I was unrepresented in proceedings below. I am indigent. I was unable to obtain an appointment with a legal practitioner to represent my case for the direction hearing at the Federal Circuit Court until 27 April 2016 I was not represented by a legal practitioner and adjournment should have been granted for me to seek legal advice.

22    The accompanying affidavit, affirmed 23 May 2016, does not in terms even refer to the lateness of the application for leave to appeal, let alone address the reason for the application being filed out of time. Instead it repeats most of what is quoted in the preceding paragraph about the applicant being unrepresented at the hearing before the primary judge on 27 April 2016, and again asserting that the hearing should have been adjourned to allow the applicant to seek legal advice. The affidavit asserts that had such an adjournment been granted, the applicant would seek proper advice about how he should conduct his case.

23    In relation to leave to appeal, nothing is said in the applicant’s affidavit. In the application, it is asserted that the decision of the primary judge was attended by sufficient error as to warrant the grant of leave to appeal, but the only error identified is an asserted denial of procedural fairness by not granting an adjournment of the 27 April 2016 hearing. The only other matters raised all seem to be related in some way to the unsuccessful adjournment application. Reference is made to summary judgment, but it is plain that his Honour did not give summary judgment, but rather judgment on the merits, such as they were.

24    When the matter was called on for hearing before me, I told the applicant that while he could make any submission he wished, he needed to focus on his explanation for filing the application out of time, what was wrong with the decision of the primary judge or anything else the primary judge did, and what was wrong with the decision of the Tribunal. He did none of those things. Instead he said that:

(1)    he had approached some six lawyers, who had all told him there was no substance to his case, and that it would certainly fail;

(2)    another lawyer he spoke to wanted higher fees of $8,000 which he could not afford;

(3)    he did not know if he was eligible for free lawyer assistance, but had not done anything about that;

(4)    his application had been prepared with the help of a friend who he knew through his church;

(5)    the Tribunal did not believe he was a goldsmith (in fact, as the Minister’s solicitor pointed out, the Tribunal had reservations about the applicant’s claim to be a goldsmith, but gave him the benefit of the doubt by accepting that the applicant had worked with his brother who operated a goldsmith/jewellery business: see [17] of the Tribunal’s decision);

(6)    the Tribunal had “complained” about his occupation not being a goldsmith on his passport or identification card, and there were applications that mentioned his occupation as a “labourer” but those had been filled in by a justice of the peace and not by him – this did not seem to advance the applicant’s case in any way;

(7)    he did not have work or Medicare rights in Australia and nothing had been done about that – again, this had nothing to do with his case; and

(8)    he had nothing else to say.

25    The end result is that the only identifiable complaint maintained in this Court is a complaint that the primary judge had not acceded to the applicant’s adjournment application. In light of what was said by the applicant at the hearing of this application about the advice he had received from six lawyers to the effect that his case was without substance and would certainly fail, it is plain that his Honour did not err in declining the adjournment application.

26    As it turns out, the primary judge was somewhat prescient in expressing the view that ample time had been allowed for the applicant to prepare for the hearing, including obtaining legal advice or representation. It can be seen that no amount of additional time would have been likely to make any difference, either in obtaining legal assistance, or in such assistance making any likely difference to the outcome of the proceedings.

27    The applicant has had ample opportunity to make whatever case he can, both in the Federal Circuit Court, and in support of his bid for leave to appeal against the primary judge’s orders in this Court.

Consideration

28    Because the applicant was not able to identify, let alone articulate, any proper ground of review or appeal, I have carefully read the primary judge’s reasons and the Tribunal’s reasons. I have also perused the material in the Court Book and Supplementary Court Book that was before his Honour. I have been unable to discern any error, let alone jurisdictional error, on the part of the Tribunal. I have similarly been unable to discern any error on the part of his Honour.

29    Put shortly, the advice apparently given to the applicant by a number of lawyers seems to have been correct. There is no substance to his case that I have been able to detect. It therefore seems that there was never any prospect of his sole ground of review succeeding, nor of any other grounds apparently being available to him that have been overlooked. This includes the applicant’s prior plea for more time to obtain legal assistance, which I note was not apparently maintained in this Court and which the applicant admitted he had done nothing about in relation to obtaining free legal assistance for the hearing before me (although I have proceeded on the basis that absence of legal representation remained an issue to be taken into account).

30    As the applicant’s case seems to be entirely devoid of merit, there can be no injustice at all, let alone substantial injustice, in refusing leave to appeal. If there is to be no leave to appeal, the application for an extension of time must also fail because granting it would be futile. The application for an extension of time and for leave to appeal must therefore be dismissed.

Costs

31    In the event that the application was dismissed, the Minister sought a fixed costs order, relying on an affidavit of one of the Minister’s solicitors, affirmed and filed in this Court on 8 August 2016. The applicant sought time to pay if any costs order was made by reason of his limited financial means, but did not otherwise oppose any costs order, nor the Minister’s reliance on the solicitor’s affidavit.

32    The solicitor’s affidavit deposes to:

(1)    the incurring of actual costs up to the date of her affidavit on 8 August 2016 of $4,812;

(2)    further costs to the point of judgment, estimated to be an additional $2,400;

(3)    a likely recovery of the sum of the above figures ($7,212) of between 65% ($4,688) and 75% ($5,409), based on the experience of her supervising partner, given his involvement in several thousand matters for the Minister during the previous 15 years; and

(4)    a short form bill of costs under r 40.43(3)(b) of the Federal Court Rules entitling the Minister to claim up to $6,439 in respect of costs and disbursements of these proceedings in this Court.

33    The affidavit identifies a midway point between the two estimated recovery figures (equal to 70% of the total costs incurred and expected to be incurred of $7,212), rounded down to $5,000, and seeks a fixed costs order in that sum. I consider that this is a reasonable figure in all the circumstances. I also consider that no further costs should be wasted by any process of assessment or taxation of costs in this matter. I am therefore satisfied that it is appropriate to fix costs and disbursements in the sum of $5,000.

34    In relation to the applicant’s request for time to pay, I consider that is a matter best left for negotiation between the Minister’s solicitors and the applicant.

Conclusion

35    The application for an extension of time and leave to appeal must be dismissed. The applicant must pay the first respondent’s costs fixed in the sum of $5,000.

Associate:

Dated:    18 August 2016