FEDERAL COURT OF AUSTRALIA

AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time under rule 36.05 of the Federal Court Rules 2011 (Cth) is dismissed.

2.    The applicant is to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant is a citizen of Sri Lanka who arrived in Australia by boat in mid-2012. He applied for a protection visa on 12 June 2013. He claimed to fear harm by reason of his Tamil ethnicity, for having provided assistance to the Liberation Tigers of Tamil Eelam (LTTE) during the war, as a failed Asylum Seeker, due to scarring from an injury inflicted during the war, and because he is from the Northern Province (reasons below at [5]). The applicant also raised a claim subsequently that he had been employed by the LTTE.

2    The application for a protection visa under the Migration Act 1958 (Cth) (the Act) was refused by a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), on 15 July 2013. That decision was affirmed by the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) on 4 May 2015.

3    The applicant seeks an extension of time to appeal pursuant to rule 36.05 of the Federal Court Rules 2011 (Cth) (FCR) against the decision of the Federal Circuit Court (the Court below) given on 13 October 2015. His application is supported by an affidavit affirmed on 25 March 2017. The Court below dismissed with costs the applicant’s application for judicial review of the Tribunal’s decision.

4    Two grounds of appeal are contained in the draft notice of appeal, namely (with particulars omitted):

1.    …The appellant was denied a fair hearing by the Federal Circuit Court Judge.

2.    His honour erred in failing to find that the Tribunal was unreasonable in evaluating evidential merits of the Applicant in the light of the admitted psychiatric condition of the Applicant

5    For the reasons set out below, the application for an extension of time must be dismissed. In short, the applicant has not provided an adequate explanation for the very substantial delay in instituting these proceedings and in any event, I do not consider that any appeal would have reasonable prospects of success.

2.    PROCEDURAL BACKGROUND

6    The applicant was in immigration detention at the time of the hearing of his application. He appeared by video-conference without legal representation and made brief oral submissions with the assistance of a Level 2 NAATI accredited interpreter. While the applicant did not file written submissions in advance of the hearing (for which I imply no criticism), he confirmed at the hearing that he had received the Minister’s written submissions and that these had been translated for him on an earlier occasion.

7    I also note that, while the applicant indicated at the start of the hearing that he may have anticipated that a lawyer would be attending on his behalf, no notice of address for service had been filed by any legal representative. Furthermore, when I asked the applicant whether he wished to have the hearing delayed so that he could contact his lawyer, the applicant said that he wished the matter to proceed and did not want it to be delayed.

3.    CONSIDERATION

3.1    Why is an extension of time required?

8    Pursuant to rule 36.03 of the FCR, a notice of appeal must be filed within 21 days after the date on which the judgment was pronounced or the orders made. The judgment and orders of the Federal Circuit Court were made on 13 October 2015. The notice of appeal was therefore required to be filed by 3 November 2015. However, it was not filed until 28 April 2017. It follows that an extension of time is required of in excess of 1 year and 5 months in order to bring the appeal.

3.2    Principles relevant to deciding whether to grant an extension of time

9    The principles relevant to the exercise of discretion to grant an extension of time for an appeal are well established. These principles may be summarised as follows.

(1)    An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

(2)    The length of the delay is a relevant factor.

(3)    The applicant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.

(4)    Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

(5)    The merits of the substantive appeal, if leave were granted, are properly to be taken into account.

(See e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349.)

10    As to the last of these matters, it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and the Court, and the impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess ‘the merits’ in a fairly rough and ready way”: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]. In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground: see MZABP (FCA) at [62].

3.3    The issues

11    The Minister opposes the grant of an extension of time having regard to the length of delay, on the basis that the explanation for the delay is inadequate, and that in any event the applicant has failed to demonstrate that his case has sufficient merit.

3.4    Has an adequate explanation being given for the delay?

12    The length of the delay in filing the proceedings is excessive, being over one year and 5 months. In such a case, I accept the Minister’s submission that the applicant must satisfy me that his case is “exceptional” before I can be satisfied that it is necessary in the interests of justice to make an order extending the period within which the appeal may be instituted: see e.g. Vell v Minister for Immigration and Border Protection [2015] HCA 42; (2015) 90 ALJR 89 at [3] (Gageler J) (by analogy) (delay of 16 months); see also e.g. Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 (Ex parte Marks) at [13] and [16] (McHugh J) (delay of 17 months).

13    The applicant gave evidence in support of his application explaining that, after his application in the Court below was dismissed:

4. …I did not know what to do. I finally sought help at the Edmund Rice Centre in Sydney which provided help free of charge.

5. I was advised there will that there seemed to be little point in appealing the Federal Circuit decision since I was so late and that they could not find a lawyer to do so for me.

6. They helped me make an appeal to the Minister instead…

7. When that was refused, they wrote to the United Nations Committee against Torture to lodge a complaint on my behalf.

8. The Australian Government then responded to the UN that my complaint should not be admitted because I had not appealed the Federal Circuit Court judgment in the Federal Court.…

14    The relevant timeline was summarised by the Minister in his submissions as follows:

49.1    Application dismissed in the Federal Circuit Court on 13 October 2015.

49.2    Period for filing of appeal expired on 3 November 2015.

49.3    Applicant applied for second Ministerial Intervention on 6 January 2016.

49.4     Second Ministerial Intervention request refused on 16 January 2016.

49.5     Complaint to UNHCR [United Nations Human Rights Committee] and CAT [Convention against Torture] filed 9 March 2015.

49.6     Application for extension of time filed with this Court on 28 April 2017.

15    In addition, on 19 December 2016, the applicant was notified by the UNHCR of the need for a further response from him, in light of the Australian government’s submission that his application to the UNHCR should be regarded as inadmissible because of his failure to exhaust his local Australian remedies by appealing the Federal Circuit Court decision.

16    I agree with the Minister’s submission that the explanation for the delay is inadequate.

17    First, there is no evidence that the applicant took any steps during the appeal period to file an appeal from the Federal Circuit Court decision or any other steps. Secondly, the fact that the applicant says that his legal advisers told him that it was little point in appealing the decision of the Federal Circuit Court indicates that he knew that he could seek to appeal that decision, even though it is not clear when he received that advice. Thirdly, the inability to obtain legal representation does not of itself explain the delay. Nor does the fact that the applicant may not speak English. Fourthly, the applicant’s decision to accept the advice of his legal representatives and instead to lodge a request for Ministerial Intervention and a complaint to the UNHCR and under the CAT constitute, as the Minister submitted, a “forensic choice” to pursue another course of redress. While I do not criticise the applicant for the choices which he made, the making of such choices does not constitute an acceptable reason for delay, as the Full Court held, for example, in M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520 at [21]-[24]; see also SZVMA v Minister for Immigration and Border Protection [2016] FCA 1058 at [35]. In effect, the applicant elected to pursue other avenues rather than proceed by way of an appeal against the decision of the Court below. In the fifth place, there is no evidence to suggest that the respondents’ conduct in any way brought about or contributed to the delay: Ex parte Marks at [16]. Finally, it should also be borne in mind that it is in the public interest that there be an end to litigation about the efficacy of administrative decisions: Ex parte Marks at [15].

18    Given therefore, the length of the delay and the lack of any adequate explanation for it, the application for an extension of time must be refused.

3.5    Would any appeal have reasonable prospects of success?

19    In those circumstances, it is unnecessary for me to consider whether, as the Minister submits, there is insufficient merit in the proposed appeal to grant leave in any event. Nonetheless, I consider that it is appropriate to consider this issue, given the seriousness of the consequences for the applicant.

20    The first proposed ground of appeal alleges that the Federal Circuit Court acted in breach of procedural fairness in two respects;

(1)    given among other things that the applicant was unrepresented, could not speak, read or write English, and had no understanding of the Australian legal system, the Court below ought to have assisted him to present his case of a failure to consider the psychological report in assessing his credibility;

(2)    the primary judge did not take appropriate steps to ensure that the applicant had sufficient information about the practice and procedure of the court and, in particular, did not explain the reasons for denying him the opportunity to submit photographs as proof of his involvement with the LTTE.

21    As the Minister submitted, a court has a duty to ensure a fair trial and, as a consequence, it may be appropriate for the court to give some assistance to those who are unrepresented in order to fulfil that duty. However, the Court hearing a case between an unrepresented litigant and another party “cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator”: Reisner v Bratt [2004] NSWCA 22 at [4] (Hodgson JA). As the Court of Appeal explained in Hamod v New South Wales [2011] NSWCA 375 (to which the applicant referred in his proposed grounds of appeal):

311. Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case…

312. Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant…

(Citations omitted)

22    In short, the Court must ensure that an unrepresented applicant is in a position to decide in an informed way how she or he wishes to pursue her or his rights, but cannot assist an applicant to establish her or his case.

23    Bearing these matters in mind, it is evident that the alleged breaches of procedural fairness have no reasonable prospects of success. The first complaint of a breach of procedural fairness merely asserts breach by reason of an alleged failure to assist the applicant in presenting an aspect of his case; it does not identify any particular breach of procedural fairness such as identifying what assistance was not, but ought to have been, given and how that failure impacted on the applicant’s capacity to present his case. The second complaint concerns the primary judge’s rejection of the tender by the applicant of photographs in relation to his alleged involvement with the LTTE. However as the primary judge held at [8] of his reasons, the photographs were not relevant to the issues before the Court because it had jurisdiction only to determine the lawfulness of the Tribunal’s decision; it did not have jurisdiction to decide whether or not the applicant’s claims to fear harm should have been accepted by the Tribunal: see below at [25]. The decision in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 (SZRUR), which is cited in the proposed ground of appeal, does not suggest otherwise. In that case the Full Court held that the primary judge ought to have explained to the unrepresented appellant that he could give evidence in support of his allegation that the migration agent had acted fraudulently in the conduct of his visa application and the failure by the Court to give that explanation may have affected the outcome. Unlike SZRUR, however, in this case there was no different procedure which the Court below could have explained to the applicant with respect to the tender of the photographs that might have led to a different outcome.

24    Ground 2 alleges that the Court below erred in failing to find that the Tribunal’s decision was unreasonable because it did not take into account the applicant’s memory loss as a result of medical treatment in making findings as to his credibility. The ground, however, has no reasonable prospects of succeeding. The Tribunal accepted that at the time of his entry interview, the applicant was receiving medical treatment and that he had expressed difficulties with his memory at the interview. The Tribunal then took that into account and as a result “placed limited weight on his evidence from the entry interview and is willing to accept that it is not significantly inconsistent with his oral evidence to the Tribunal.” (Tribunal’s reasons at [33]). There is therefore no arguable case that the primary judge erred in finding that the Tribunal had in fact taken this matter into account in making credibility findings (Court below at [15]).

25    Finally, in his oral submissions the applicant repeated his claims to fear persecution and harm if returned to Sri Lanka. As I explained at the hearing, the jurisdiction of the Federal Circuit Court is limited to deciding whether the Tribunal’s decision was made lawfully under the Migration Act, that is, whether the Tribunal’s decision is invalid by reason of a jurisdictional error.  This Court in turn must decide whether the Federal Circuit Court wrongly decided that there was no jurisdictional error.  The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the applicant’s visa application must be assessed under the Act, or if it failed to hear and determine his application in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court).  However, neither this Court nor the Federal Circuit Court has jurisdiction to grant the applicant a visa, to consider whether he satisfies the criteria for the grant of protection visa, or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The question of whether or not this Court or the Court below agrees with the Tribunal’s decision is not, therefore, a basis for finding that decision invalid, even if another decision-maker might have made a different decision.

26    For these reasons, any appeal would have no reasonable prospects of success even if an extension of time were granted.

4.    CONCLUSION

27    For the reasons set out above, the application for an extension of time must be refused with costs.

Associate:

Dated:    1 September 2017