FEDERAL COURT OF AUSTRALIA

AEL15 v Minister for Immigration and Border Protection [2017] FCA 1295

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs of the application fixed in the sum of $1,756.

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

REASONS FOR JUDGMENT

DERRINGTON J:

1    This matter was heard earlier today. The applicant appeared by telephone from Sydney. The applicant is Singhalese and does not speak English and, therefore, an interpreter, who was present in Brisbane, translated for him. After the hearing of the matter it was stood down such that these written reasons could be prepared. It seems appropriate that reasons be provided in this form so that the applicant may immediately know the outcome of his appeal and the reasons for that outcome. It would have been a most difficult proposition for an extempore judgment delivered orally to be contemporaneously translated.

2    In the matter before the court the applicant seeks an extension of time in which to file a Notice of Appeal from a decision of the Federal Circuit Court made on 21 September 2015 (published as AEL15 v Minister for Immigration [2015] FCCA 2656). In that decision the learned Federal Circuit Court judge dismissed an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (AAT) which had affirmed the decision of the Minister’s delegate to refuse to issue a visa to the applicant and to the applicant’s son.

3    The decision of the Federal Circuit Court was formally pronounced on 21 September 2015. Pursuant to r 36.03 of the Federal Court Rules the applicant was required to file a Notice of Appeal within 21 days after the date on which those orders were pronounced. That being so the applicant should have filed the appeal by no later than 12 October 2015. 596 days have expired since that time.

Applicable principles to extension of time applications

4    The factors which ought generally to be taken into account in determining whether to grant an extension of time in which to appeal include the extent of the delay, any explanation for the delay, any prejudice which the respondent may suffer by reason of the delay and, finally, the merits of any proposed appeal (see Mohammed v Minister for Immigration and Border Protection (2015) 231 FCR 243, [15]; SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, [15]-[19]). It is now well accepted that there is no requirement that “special” or “extraordinary” circumstances be shown before an extension of time is granted. However, the court must be satisfied that it is proper to extend time noting that the prescribed period imposed by the rules is not to be easily ignored. This generally requires that an applicant must show an acceptable reason for the delay. It is also now well recognised that the mere absence of prejudice to the respondent is not sufficient to justify the granting of an extension.

Extent of the delay

5    As mentioned, the applicant is 596 days out of time in which to lodge an appeal. That is an inordinately long period of time in relation to an application of this nature. A lapse of this period of time cannot be easily excused and that is especially so in the context of governmental decision-making where expedition of some degree is a necessary characteristic.

Explanation for the delay

6    The affidavit in support of the application makes a number of assertions as to why the applicant was unable to lodge an appeal to the Federal Court within the prescribed time limits. They are that he did not understand English, that he did not have the capacity to pay the sum of $15,000 requested by lawyers to conduct his appeal, that he had a variety of medical conditions including some spinal trouble, that he is a diabetic and that his eyesight is weak. None of those explanations are adequate in the present circumstances. Whilst each of them or any combination of them or all of them may preclude the appellant from instituting an appeal within the time limit, they do not explain the inordinate delay which occurred in this case. Whilst it can be accepted that the costs of legal representation provide a bar to the institution of legal proceedings there are many pro bono legal organisations which can assist people in the financial circumstances such as those experienced by the applicant.

7    It follows that there is no adequate explanation for the delay in failing to lodge the application for leave to appeal until some 596 days after the time prescribed by the rules had expired. This is a not insignificant factor in the determination of the appeal. That is especially so because the legislature has prescribed a relatively short period in which an appeal from the Federal Circuit Court might be instituted.

Prejudice to the respondent

8    Quite properly the first respondent has acknowledged that he will suffer no prejudice if the court were to grant an extension of time in which to lodge the appeal. That said, the first respondent identifies that there is a real public interest in the finality of any public decision-making process. That is undoubtedly true and the granting of an extension in a case such as the present where there is an unexplained extraordinary delay can undermine public confidence in the expeditious finalisation of governmental administration.

Merits of the appeal

9    If it were the case that the applicant had substantial grounds of appeal the factors already referred to might be outweighed. However, in this case, nothing has been demonstrated by the applicant which might suggest the existence of any valid grounds of appeal.

10    The draft Notice of Appeal identifies only two grounds. They are:

1.    The applicant was denied a fair hearing;

2.    The learned Federal Circuit Court judge did not examine whether the full integers of the claim was (sic) examined.

11    Despite the directions for the filing of an outline of submission in support of today’s application, none has been filed by the applicant.

12    It follows that the grounds on which any appeal might proceed are necessarily obscure. Nothing said by the applicant in the course of the oral hearing was able to shed any light on these matters.

Merits of the appeal

Background

13    In order to understand the nature of any possible issues which arise in this matter, it is necessary to consider, in a general way, its background and the decisions of the Tribunal and of the Federal Circuit Court.

14    The applicant, along with his dependent son, are both Sri Lankan citizens. They arrived in Australia as Irregular Maritime Arrivals on 25 July 2012. The following year, on 28 January 2013, the then Minister exercised his power under s 46A(2) of the Migration Act 1958 to permit both the applicant and his son to lodge protection visa applications. Subsequently, on 5 February 2013, the applicant lodged an application for a Protection (Class XA) visa. His son applied for a visa as a member of the applicant’s family unit. At that time the son made no application for a protection visa in his own right. Despite that before the Tribunal the son made claims of his own which suggested that he was entitled to a protection visa in his own right.

15    A delegate of the Minister refused to grant the applicant a visa by a decision made on 30 August 2013. By an application to the Refugee Review Tribunal (the Tribunal) on 6 September 2013 the applicant sought review of the delegate’s decision. The Tribunal held a hearing on 30 January 2015 at which both the applicant and his son were present and each gave evidence with the assistance of a Singhalese interpreter. The applicant’s registered migration agent also appeared at that hearing although the extent of the involvement of that person is unclear.

16    The decision of the Tribunal is both detailed and comprehensive. It was delivered on 10 February 2015. In it the Tribunal affirmed the delegate’s decision not to grant the protection visa to the first applicant or his son.

17    Before the Tribunal the applicant had claimed that he was an active member of the UNP movement in Sri Lanka, that he was involved in the party’s political activities, that he was President of the local branch of the UNP and that he had been attacked and assaulted by members of a rival party or group whom the authorities would not prosecute. The Tribunal, ultimately, did not believe much of what was asserted by the applicant and the applicant’s son. The Tribunal engaged in a thorough analysis of the evidence before it and reached the conclusion that due to the wide variety of inconsistencies and improbabilities the claims which were made were fabricated and/or embellished. The Tribunal found that the applicant was not an active member of the UNP in his village and that he was not the Branch President of that party as he claimed. In the result, the Tribunal found that neither the applicant nor his son were persons in respect of whom Australia had protection obligations under the Refugee Convention or other complementary protection grounds, nor were they members of the same family unit as a person who had those qualifications.

18    The reasons of the Tribunal are, as mentioned, comprehensive and detailed. Some important matters determined by the Tribunal were:

(a)    That the applicant’s evidence as to his involvement in the UNP was not credible. His evidence was inconsistent in important respects and, indeed, was lacking in any credible detail in respect of matters of which the applicant, on his version of events, should have been aware.

(b)    The Tribunal did not accept that the applicant had been engaged, as he asserted, in election campaigns or that he was a UNP member or its President in his local area. The Tribunal reached the conclusion that the applicant was “making up his evidence as he went along”.

(c)    Equally, the Tribunal determined that the evidence of the applicant’s son was inconsistent and lacking in important detail in a number of respects.

(d)    The Tribunal disbelieved the applicant and his son in relation to their assertions about an alleged assault by members of a rival political party and the refusal of the authorities to respond to it. The Tribunal accepted that the applicant had suffered an assault, however, it did not consider that the assault was connected to any political affiliations held by the applicant.

(e)    The Tribunal also rejected the allegation that the applicant had to go into hiding after the assault.

(f)    The Tribunal further found that, having regard to country information, asylum seekers from a western country were not at risk of harm upon return to their country of origin. It held that such risks are limited to those who are perceived to have a significant role in relation to post-conflict separatism. It concluded that neither the applicant nor his son could be so characterised.

(g)    The Tribunal also accepted that any data breach from the Commonwealth Department of Migration did not raise the “political profile” of the applicant or his son and it did not expose them to any greater risk of harm.

(h)    It was accepted that the applicant and his son departed Sri Lanka illegally and that they would be treated accordingly on their return. However, that treatment is non-discriminatory and would be likely to involve a fine and possibly being held on remand for a short period of time.

(i)    The Tribunal held that neither the applicant nor his son satisfied either s 36(2)(a) or s 36(2)(aa) of the Act.

As a consequence of these findings the decision under review was affirmed.

Appeal to the Federal Circuit Court

19    On 11 March 2015 the applicant filed an application to show cause in the Federal Circuit Court. It was later amended. In that document he identified a number of grounds of review. In brief they were:

(1)    The Minister erred in not following the proper procedures in their determination of the application.

(2)    The information “leak” from the Department had placed the applicants and their families in great danger and the Minister failed to take that into account.

(3)    The Tribunal erred by taking into account relevant considerations.

(4)    The Minister erred by failing to take into account relevant considerations.

(5)    Complementary protection criterion.

20    The application was heard by the learned Federal Circuit Court judge on or about 21 September 2015 and, by an extempore judgment delivered that day, the learned primary judge dismissed the amended application. In his reasons for judgment the Federal Circuit Court judge essayed the circumstances surrounding the various grounds of appeal and considered each per seriatim.

21    The first ground of appeal seemed to relate to the use of a statement made by the applicant’s son in the hearing before the Tribunal. The gravamen of the complaint appears to be that although the applicant was invited to provide submissions to the Tribunal he did not do so although his son did. It appears that the applicant adopted the son’s submission during the course of the Tribunal hearing. There was no elucidation of why it was that the use of the son’s statement was improper in any way. The Tribunal was careful to accord the applicant every opportunity to provide information to it and nothing has been identified which suggests that the applicant’s ability to provide evidence and/or submissions to the Tribunal was hindered in any way whatsoever. The learned Federal Circuit Court judge dismissed this ground of appeal.

22    The second ground of appeal appeared to relate to the disclosure of information by the Department of Immigration which identified persons who were then held in immigration detention. It was asserted that the Tribunal did not take this into account when reaching its decision. Patently this was not so. Although it was not a matter raised during the course of the hearing, the fact of the privacy data breach and the possibilities which might flow from it were raised by post-hearing submissions on behalf of the applicant. At paragraph 76 of the Tribunal’s reasons, it expressly noted the fact of the data breach and it took it into account. The Tribunal concluded that the applicant would not be at any greater risk on his return to Sri Lanka as a result of the breach. Again, the learned Federal Circuit Court Judge rejected the ground of review founded upon the data leak.

23    Grounds three and four before the Federal Circuit Court judge related to complaints made by the applicant as to the findings of credibility by the Tribunal. In general terms, the complaints related to the manner in which the Tribunal considered the evidence before it and, in particular, the various inconsistencies in that material. The issue raised here was a complaint about the fact finding process of the Tribunal and did not raise any possible ground of judicial review. The matter was considered at length by the Federal Circuit Court judge who correctly identified the grounds as being “merits review” of the Tribunal’s decision and that no jurisdictional error arose.

24    The final ground of appeal to the Federal Circuit Court was to the effect that the Tribunal had not provided definite or substantive reasons as to why the applicants did not qualify under the complementary protection criteria. As the learned Federal Circuit Court Judge found, the Tribunal did consider this matter in some detail. It identified that it had rejected the applicant’s claims as to their memberships and activities and as to the threats of harm. It concluded that it did not accept that the applicant or his son faced any real risk of significant harm in the future if they were returned to Sri Lanka. It also found that there was no significant risk to either of them if they were to be returned on the grounds that they had departed Sri Lanka illegally. As a result, the learned Federal Circuit Court judge held that ground five had not been made out.

Grounds of appeal to this court

25    As mentioned above, the grounds of appeal to this court are obscure and the absence of any written submissions renders them somewhat meaningless. Nothing that has been said by or on behalf of the applicant today has altered that position.

26    As to the first ground of appeal that the applicant was denied a fair hearing, it is unclear whether that refers to the hearing before the Tribunal or the hearing before the Federal Circuit Court. If it were an allegation in respect of the hearing before the Tribunal, leave would be required to raise this new ground which was not raised in the Federal Circuit Court. However, in the absence of any material to support the contention leave should be refused. Given the substance of the Tribunal’s reasons which disclose that the applicant and his son had every opportunity to advance their case before it, no such ground could be made out. If, however, the ground is said to refer to the hearing before the Federal Circuit Court no leave would be required. However, there is nothing produced by way of evidence nor anything which arises from the face of the reasons of the Federal Circuit Court which suggest that the applicant was denied a fair hearing. On the contrary, the learned Federal Circuit Court judge was careful to consider all aspects of the claims which were made by or on behalf of the applicant. It is apparent that the applicant had every opportunity to make this case before the Federal Circuit Court. This ground of appeal is without merit.

27    The second ground of appeal is unintelligible in the absence of any elucidation. It would also appear to be legally confused. The determination of the Federal Circuit Court was in the context of a judicial review of the decision of the Tribunal. Whilst the Tribunal was required to consider all the integers of the applicant’s claim lest it engage in jurisdictional error, that was not a task which the Federal Circuit Court was required to undertake. The Federal Circuit Court was required to ascertain whether the Tribunal’s decision was infected by any jurisdictional error. In doing so it considered the grounds raised by the applicant and ascertained that no error arose. On the face of the reasons of the Federal Circuit Court it would appear that the grounds of review relied upon by the applicant were fully considered. It follows that this ground of appeal is also without merit.

Conclusion

28    In the result, there is no warrant for granting an extension of time in which the applicant might file a Notice of Appeal from the decision of the Federal Circuit Court. All of the factors considered weigh heavily against the granting of any such relief. The delay in seeking to file the application for an extension of time is inordinate. There is no real explanation for the failure to file an appeal within time and no reasonable explanation as to why the application to extend time was not filed prior to 596 days after the time for filing the appeal had expired. Although there is no prejudice to the Minister were leave to be granted, an extension of time would be inconsistent with the notion of expeditious disposition in public administration. Finally, there is no merit in any of the proposed grounds of appeal. Accordingly, the application for an extension of time is dismissed.

Joinder of another party

29    In his most recent affidavit the applicant sought to join his son to the appeal as a second applicant. Pursuant to s 486B(4) of the Migration Act, the joinder of applicants to an appeal is not permitted save in certain identified circumstances. Pursuant to s 486B(7) a party may be joined if they are a member of an existing party’s “family”. However, the expression “family” is defined in regulation 4.53 of the Migration Regulations 1994 to include a dependent child, or a child under the age of 18. In turn, the expression “dependent child” would only include a person who is over 18 if they were dependent upon the visa applicant.

30    The Minister, by his solicitors, submits that there was no evidence of dependency of the applicant’s son. That is correct and for that reason alone the application might have been refused. I permitted the applicant to explain the relationship between himself and his son. As he expressed it, he does not support his son in any way. He is not working and he is not entitled to social security benefits. On the other hand, his son does engage in casual work. His son does not live with him but occasionally attends on him to assist him. In no way can it be said that his son is within the expression “dependent child”.

31    Therefore, the application to join the applicant’s son as a party to the appeal must fail.

32    No reason has been shown as to why the applicant should not pay the first respondent’s costs of this application. The applicant has sought costs in a fixed amount and it is appropriate that the applicant pay the first respondent’s costs in the sum of $1,756.

Associate:

Dated:    7 November 2017