FEDERAL COURT OF AUSTRALIA

BNV15 v Minister for Immigration and Border Protection [2017] FCA 1048

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time is refused.

2.    The applicant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    This is an application for a substantial extension of time within which to appeal. It is opposed.

BACKGROUND

2    The applicant is a citizen of Sri Lanka who was born in 1980. His family left Sri Lanka for India in 1990, where he resided until he travelled to Australia in 2010, arriving in Australia at Christmas Island as an unauthorised boat arrival.

3    On 30 July 2010, the applicant made a request for a refugee status assessment, and on 6 January 2011 he was found not to meet the definition of a refugee.

4    On 21 February 2011, the applicant applied for an independent merits review (IMR). On 8 February 2012, the IMR reviewer found that he did not meet the criterion for a protection visa in s 36(2) of the Migration Act 1958 (Cth) and recommended that the applicant not be recognised as a person to whom Australia has protection obligations.

5    On 27 February 2012, the applicant applied to the Federal Magistrates Court of Australia for judicial review of the IMR recommendation. That application was dismissed on 13 November 2012 and the applicant's application to this Court for an extension of time to appeal that decision was dismissed on 4 April 2013.

6    However, by letter dated 23 December 2014 the Department of Immigration and Border Protection advised the applicant that it would undertake a re-assessment of his protection claims as part of a new International Treaties Obligation Assessment (ITOA) to determine whether Australia had any non-refoulement obligations to the applicant under the Convention Relating to the Status of Refugees, the Convention against Torture and the International Covenant on Civil and Political Rights. The ITOA process was finalised on 15 June 2015 with a finding that Australia's non-refoulement obligations were not engaged.

7    On 8 July 2015, the applicant lodged an application for review of the ITOA with the Federal Circuit Court of Australia. The application was heard on 23 March 2016 and on 7 April 2016 the Federal Circuit Court delivered its judgment and ordered that the application be dismissed.

8    On 8 February 2017, the applicant lodged an application in this Court seeking an extension time within which to institute an appeal from the decision of the Federal Circuit Court given on 7 April 2016.

9    The applicant also filed an affidavit with the Court on 8 February 2017 purporting to set out reasons for the delay in seeking to appeal the Federal Circuit Court judgment and setting out reasons why he wished to appeal that judgment (the applicant's affidavit).

RELEVANT STATUTORY PROVISIONS/RULES

10    Pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), the appellate jurisdiction of this Court includes jurisdiction to hear and determine appeals from judgments of the Federal Circuit Court.

11    The time for filing and serving a notice of appeal is governed by r 36.03 of the Federal Court Rules 2011 (Cth) which provides as follows:

36.03    An appellant must file a notice of appeal;

(a)    within 21 days after:

(i)    the date on which the judgment appealed from was pronounced or the order was made; or

(ii)    the date on which leave to appeal was granted; or

(b)    on or before a date fixed for that purpose by the court appealed from.

12    Rule 36.05 provides for applications for extension of time to file a notice of appeal, and states:

36.05    Extension of time to file a notice of appeal

(1)    A party who wants to apply for an extension of time within which to file a notice of appeal must file an application, in accordance with Form 67.

(2)    The application may be made during or after the period mentioned in rule 36.03.

(3)    The application must be accompanied by the following:

(a)    the judgment or orders from which the appeal is to be brought;

(b)    the reasons for the judgment or orders, if published;

(c)    an affidavit stating:

(i)    briefly but specifically, the facts on which the application relies; and

(ii)    why the notice of appeal was not filed within time;

(d)    a draft notice of appeal that complies with rules 36.01(1) and (2).

BEFORE THIS COURT

13    On the hearing before me the applicant appeared in person, assisted by an interpreter, and stressed two things. First he stressed that he would be at risk of persecution were he to return to Sri Lanka, contrary to the findings that had been made. Secondly, he stressed that in his interviews he had made clear that he had fled Sri Lanka for India due to fear of persecution, rather than for economic reasons and that the Department had failed to realise this.

14    In support of the first matter, he sought to tender the Amnesty International Report for 2016-2017, which he said he had emailed to the Court. No email had been received, but notwithstanding this, the Report could be accessed if it were relevant and admissible. However, it is not admissible, in my view, as it was tendered in a challenge to the finding on the merits that the applicant would not be at risk on returning to Sri Lanka. More importantly, nothing specific was identified in the Report which would assist the applicant's case and, in any event, the content of the Report related to circumstances after the time at which his application was assessed.

CONSIDERATION

15    The applicant seeks an extension of time pursuant to r 36.05 of the Federal Court Rules to appeal from the orders made by the Federal Circuit Court on 7 April 2016 for the reasons set out in the applicant's affidavit. Pursuant to r 36.03 of the Federal Court Rules the applicant was required to file and serve his notice of appeal from the Federal Circuit Court judgment within 21 days of the date of the judgment, that is, by 28 April 2016.

16    The application before this Court was not filed until 8 February 2017. It is, therefore, 286 days outside of the 21 day period permitted by r 36.03.

17    The application is in excess of 13 times the specified statutory period of 21 days.

18    Rule 36.05(3)(c) requires an affidavit stating the facts upon which the applicant relies and why the notice of appeal was not filed within time. Rule 36.05(3)(d) requires that an application be accompanied by a draft notice of appeal that complies with r 36.01(1) and r 36.01(2), but the applicant has not filed a draft notice of appeal.

19    In Re Commonwealth; Ex parte Marks (2000) 177 ALR 491, McHugh J discussed the principles governing applications for the extension of time under the High Court Rules 2004 (Cth). Those principles are relevantly analogous to those that apply to applications for an extension of time under r 36.05 of the Federal Court Rules. In summary, McHugh J said that:

    The grant of an extension of time is not automatic (at [13]).

    A case 'would need to be exceptional' before the time for commencing proceedings was enlarged by many months (at [13]).

    An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension (at [15]).

    In deciding whether or not to enlarge time, the Court may take into account the explanation for the delay in commencing proceedings, and the applicant's prospects of success in the proceedings (at [13]).

    Constitutional writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions (at [15]).

20    In circumstances where the limitation period provided by r 36.03 of the Federal Court Rules is just 21 days, and where an applicant has delayed in instituting an appeal by more than 9 months, it would require an exceptional case before an extension of time should be granted.

21    The Minister argues that the length of the delay here is so great that the merits of the appeal are of limited significance. Limitation periods do not exist only to bar actions or appeals that would fail on the merits in any event. As McHugh J recognised in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (at 553), where the period selected by Parliament as the appropriate limitation period is exceeded, the limitation period may ‘often result in a good cause of action being defeated’. A limitation period prevents a respondent from being required to litigate a claim that is brought substantially out of time, irrespective of its merits, unless the case is shown to be of an ‘exceptional’ kind.

22    However, it is also necessary, as the Minister acknowledges, to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties if an extension of time is granted or refused.

23    The applicant's affidavit does not provide any satisfactory explanation for the whole of the period of delay. The fact that he was in immigration detention, has not been able to engage a lawyer, and that his English is not good, does not justify the granting of an extension of time. Many persons who are in the same position as the applicant are able to bring applications and appeals with the required time limits. However, I would infer that there was some degree of confusion on the part of the applicant as to his rights.

24    On the facts of this case, nonetheless, there is no satisfactory, let alone persuasive, explanation for the full extent of the delay of 286 days.

GROUNDS OF APPEAL

25    I turn in any event to consider what I infer would be the grounds of appeal, which are set out in the application for extension of time.

26    The five paragraphs under the heading ‘Grounds of application’ state:

1.    The First Respondent and the Second Respondent fell into jurisdictional error by not applying in the law / or the facts presented by the way of evidence and documents.

2.    The Primary Judge agreed entirely with the decision given the Second Respondent and thereby fell into jurisdictional error.

3.    In specific terms the law in Sri Lanka that I fear will be applied in my case is the Prevention of Terrorism Act. This gives power to the armed forces to act without being supervised by the civil authority of the courts of law in Sri Lanka.

4.    This Act was specifically aimed at Sri Lankan Tamils and its provisions were not adequately examined in the context of my case on the basis of the evidence provided.

5.    The country situation was not assessed in a balanced manner in that only the report of the Foreign Affairs and Trade was accepted and the reports of organisations like the UNHCR, Amnesty International, Asia Watch, and Oakland Institute of USA, an Independent think tank was not accepted.

27    As in many of these cases and despite attempting to identify what might be an arguable ground of appeal within the confines of the statutory regime, no such ground has been raised.

28    Grounds 1 and 3 - 5 above are simply unparticularised complaints. They cannot point to any appellable error by the Federal Circuit Court and for that reason could not succeed: see SZJHE v Minister for Immigration & Citizenship [2008] FCA 1771 (at [6]-[7]).

29    Grounds 3 and 4 refer to the Sri Lankan Prevention of Terrorism Act and assert that its provisions were not adequately examined in the context of the applicant's case on the basis of the evidence provided. However, the assessor made no reference to that Act in the ITOA, and the applicant did not raise the Act in any ground of review before the primary judge.

30    Leave is required to raise new grounds on appeal. Were leave sought, it would be refused as the proposed grounds based on the Prevention of Terrorism Act lack sufficient merit and no adequate explanation has been provided for the failure to raise the grounds in the Federal Circuit Court: see Hossam v Minister for Immigration and Border Protection [2016] FCA 1161 (at [39]-[44] and [46]); VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 (at [48]).

31    Ground 5 asserts that the country situation was not assessed in a balanced manner in that only the report of the Department of Foreign Affairs and Trade (DFAT) was accepted and reports of other organisations were not accepted. This ground appears to allege error by the assessor, but does not identify any appellable error by the primary judge. It was also not raised as a ground of review in the Federal Circuit Court, and leave to raise it as a new ground on appeal were it sought, would not be granted for the same reason as grounds 3 and 4.

32    But, it is worth mentioning that the applicant's contention that the assessor only accepted DFAT information is incorrect. As noted by the Federal Circuit Court (at [10(e)-(f)]), the assessor set out material that was before it, including relevant country information cited in the ITOA and, as well as the DFAT report, the United Nations High Commissioner for Refugees Handbook and Procedures and Criteria for Determining Refugee Status. While the submissions on behalf of the applicant to the assessor referred to more extensive country information reports, the assessor was not obliged to accept them. It is well settled that the country information to which a decision maker has regard and the weight it gives that information is a matter for the decision maker: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (at [11]); VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 (at [63]).

33    Ground 2 also misunderstands the task of the Federal Circuit Court. It alleges that the primary judge agreed entirely with the decision of the assessor. In fact, the primary judge found that none of the applicant's grounds of review were made out and, accordingly, that the assessor in conducting the ITOA committed no jurisdictional or legal error: see judgment (at [24]).

34    It is true that the applicant's affidavit provides further reasons for seeking to appeal the Federal Circuit Court's judgment. Under the heading ‘Marked II’, it provides:

8)    I believe that the first and second respondent have fallen into jurisdictional error by not examining the relevant laws and regulations / of facts as presented in the evidence.

9)    I believe the first and second respondent did not examine the country situation in Sri Lanka pertaining to the Sri Lankan Tamils with due diligence.

10)    I have a well-founded fear of returning to Sri Lanka for persecution and human right abuses that I can be a victim under the Prevention of Terrorism Act, which is primarily aimed against the Sri Lankan Tamils in their attempt to protest and seek the right of self-determination under the UN charter pertaining to human rights.

35    None of these paragraphs raises any appellable error by the primary judge and could not succeed. But, again, the claims in para 8 and para 9 are bare unparticularised assertions, and in the absence of particulars could not succeed.

36    Paragraph 10 seeks to reiterate the merits of his claim, and does not raise any error on the part of the assessor or the Federal Circuit Court. Any proposed ground of appeal in these terms could not succeed. Further, this also was not a matter raised as a ground of application in the Federal Circuit Court.

CONCLUSION

37    The application for an extension of time must be dismissed with costs.

Associate:

Dated:    4 September 2017