FEDERAL COURT OF AUSTRALIA

BYL15 v Minister for Immigration and Border Protection [2017] FCA 1357

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the costs of the first respondent, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1    The applicant has applied for an extension of time in which to appeal a decision of the Federal Circuit Court of Australia (“the FCC”) dismissing his application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2    The applicant was 31 days out of time in which to file an appeal. In an affidavit affirmed by him in support of his application, the applicant explained that he was not aware that there was a time limit in which to bring an appeal. Ignorance of the time limit is not generally regarded as a satisfactory explanation for delay (SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38]), but as the delay was not extensive and the first respondent has not identified any prejudice to him by reason of the delay, the application should not be refused merely upon the absence of a satisfactory explanation.

3    The applicant has not filed a draft notice of appeal, but identified three proposed grounds in his affidavit:

(a)    The FCC erred in finding jurisdictional error, having found that the Tribunal had made an incorrect factual finding;

(b)    The FCC erred in failing to find that the Tribunal had not properly considered the applicant’s individual circumstances in assessing whether he qualified for a protection visa; and

(c)    The FCC erred by failing to find that the Tribunal was biased.

4    As to proposed ground 1, the factual error is found at [29] of the Tribunal’s reasons. Earlier the Tribunal had found inconsistencies between the evidence that the applicant had given at the hearing and the claims he made in his statutory declaration supporting his protection application. The Tribunal’s reasons recorded at [29]:

The Tribunal notes the applicant’s adviser’s submission at the conclusion of the hearing that he assisted the applicant in preparing his statutory declaration and had asked the applicant during the break in the hearing if he was on medication, after noticing that there were a couple of letters on his file from psychiatrists, and the applicant had advised him that he was on medication including on the day he was interviewed by him and this medication led him to forget certain things and become very dizzy and disorientated. The adviser did not have the name of the medication the applicant was allegedly on at the time he interviewed the applicant and was therefore not able to confirm the side effects of such medication. However, he submitted giving the applicant the benefit of the doubt, that may explain some of the discrepancies. As the Tribunal noted during the hearing there is nothing on either the Department’s file or the Tribunal’s file indicating that the applicant had received any medical attention including from psychiatrists. The Tribunal notes the applicant was given time after the hearing to submit the letters referred to by the applicant’s adviser during the hearing and at the time of decision, the Tribunal has not received any letters or medical evidence confirming that the applicant had seen a psychiatrist or medical practitioner and was on medication either at the time he was interviewed by his adviser or at any time. Given the Tribunal’s concerns regarding the applicant’s credibility, as raised during the hearing, the vagueness of the information regarding the medication the applicant was allegedly prescribed and the absence of any evidence to confirm the applicant was on medication as claimed, the Tribunal does not accept that the applicant was on medication at the time he made his statutory declaration or was interviewed by his adviser and therefore does not accept that this explains the deficiencies in the applicant’s evidence.

5    In fact there was some medical evidence on the Tribunal’s file – a record of an attendance at Box Hill Hospital on 30 March 2015, furnished by the applicant in support of his request for an adjournment of the hearing initially listed for 30 March 2015 (which was granted and rescheduled for 18 May 2015), a medical report from a consultant neurologist in respect of a consultation with the applicant on 4 May 2015, and an email from the neurologist dated 14 May 2015 furnished by the applicant in support of a request for an adjournment of the 14 May 2015 hearing (which was also granted and rescheduled for 24 August 2015). The FCC held that the Tribunal’s finding that no medical evidence was furnished to confirm that the applicant had seen a psychiatrist or medical practitioner was, in light of that medical evidence, plainly erroneous. However the FCC concluded that the factual error had not led to jurisdictional error because there was no evidence that the applicant’s capacity to recount his history was affected by a medical condition at the time that he made his statutory declaration or was interviewed by his advisor or when he appeared before the Tribunal on 24 August 2015. The FCC accordingly dismissed this ground of review and was correct to do so. It is well established that a mere factual error by the Tribunal does not constitute jurisdictional error unless it relates to a jurisdictional fact or as a manifestation of some error of law substantive or procedural which constitutes jurisdictional error and thereby vitiates the purported decision: NABE v Minister for Immigration (2004) 144 FCR 1 at [53]; Minister for Immigration and Citizenship v SZNPG (2010) FCAFC 51 at [28]. For the reasons given by the FCC, the Tribunal’s factual error had no consequence on the outcome and did not constitute jurisdictional error.

6    Proposed ground 2 is simply a bald assertion without particularisation but it was dealt with by the FCC below as grounds 1 and 2 of the application for review. Ground 1 alleged a failure on the part of the Tribunal to give consideration to the evidence provided by the applicant that he would be harmed on his return Sri Lanka due to his political involvements in that country. Ground 2 alleged a failure to give consideration to the applicant’s status as a returned asylum seeker and the significant risk that the applicant would face torture and/or imprisonment if he was returned to Sri Lanka. After an examination of the reasons of the Tribunal, the FCC concluded that the grounds of review and the submissions filed in support of those grounds essentially sought to challenge findings of fact and seek to have the Court engage in merits review of the decision of the Tribunal, which was beyond the jurisdiction of the Court. On the morning of the hearing of his application to this Court for an extension of time in which to file his appeal, the applicant filed an outline of submissions identifying what he claimed were errors made by the Tribunal. In those submissions the applicant alleged that the Tribunal erred in making a number of factual findings. In substance, the submissions also took issue with the merits of the Tribunal’s decision rather than disclosing legal error in the process of reaching that decision. It is clear from the Tribunal’s reasons that the Tribunal considered all of the applicant’s claims and rejected them in large part based upon adverse credit findings against the applicant. The factual findings which are challenged by the applicant were open to the Tribunal for the reasons that the Tribunal gave.

7    The third proposed ground is also a bald assertion without particularisation and there is nothing in the materials to indicate that there is any substance in that assertion. It is also noted that the applicant did not in his application for review by the FCC raise bias as a ground of review. There can be no error of law in the FCC failing to make a finding on a claim that was not made.

8    As the proposed appeal does not have any reasonable prospects of success there is no utility in granting an extension of time. Accordingly, the application must be dismissed.

Associate:

Dated:    7 December 2017