FEDERAL COURT OF AUSTRALIA

BSL15 v Minister for Immigration and Border Protection [2017] FCA 1444

ORDERS

THE COURT ORDERS THAT:

1.    The time in which the applicant may file a notice of appeal is extended to 15 May 2017.

2.    There will be a referral under r 4.12 of the Federal Court Rules 2011 (Cth) for the applicant to receive advice and legal representation for the purposes of drafting an amended notice of appeal.

3.    An amended notice of appeal is to be filed and served on or before 4 pm on 23 February 2018.

4.    The first respondent’s costs of the application are reserved.

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

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Revised)

MORTIMER J:

1    The applicant, who had applied for a protection visa, is out of time to appeal from orders made by the Federal Circuit Court on 19 April 2017, dismissing his judicial review application. He filed his proposed notice of appeal and extension of time application on 15 May 2017 and therefore requires an extension of five days.

2    The Minister opposes the grant of an extension of time because he submits the proposed notice of appeal does not identify a ground of appeal with any prospects of success and the explanation for the delay, small as it is, is inadequate.

3    I dealt with the principles applying to extension of time applications, as the Minister’s submissions point out, in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 and, in particular, at [56]-[66], approved on appeal at MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]. I need not repeat those observations. I emphasise now, as I did then, that much is at stake for applicants in the migration jurisdiction, and whether an application has arguable grounds of review, or grounds of appeal, should not be the subject of fastidious or close inquiry for that would be to usurp the function to be performed if an extension of time is granted (or leave to appeal is granted, to which similar considerations apply).

4    As the Minister submits, the Court will examine an applicant’s explanation for delay, and the length of delay, and they may be important factors in the exercise of discretion. The Minister correctly concedes no particular prejudice if this extension of time were granted, but does point to my remarks in MZABP about the more generalised prejudice to the administration of justice if leave is granted in wholly unmeritorious claims. I am not satisfied that it is possible to characterise the applicant’s appeal as wholly unmeritorious, at least not in the circumstances which I will explain.

5    The applicant has quite a long history in Australia. He first arrived here on a student visa in November 2008. He did not apply for a protection visa until August 2013, a fact which the Tribunal used against him in its reasoning. His application was refused by a delegate of the Minister, and his review application to the Tribunal was also unsuccessful. The Tribunal affirmed the decision under review on 28 July 2015.

6    In summary, the Tribunal did not believe the applicant’s claims to have been taken by Maoist rebels in 2003. The Tribunal disbelieved the applicant based on a number of inconsistencies it found in his accounts of what had happened to him. Building on these rejections of the applicant’s claims, the Tribunal also rejected his account of his fear of the Maoists while in Kathmandu and did not believe the applicant had to move around Nepal to avoid them because of his fear. Without determining whether the applicant did, in fact, suffer from the psychological conditions he claimed at the time of the Tribunal’s review to have suffered from, the Tribunal dismissed his claims to be exposed to a risk of harm in Nepal because of them. The Tribunal also dismissed, in a line or two and without express reference to any country information, the concerns expressed by the applicant about the security situation in Nepal.

7    On judicial review, the applicant was self-represented before the Federal Circuit Court as he is on this application. The Federal Circuit Court dealt with the grounds of review as the applicant had identified them, noting that a number of them were not properly to be considered as grounds of judicial review, a fact which is hardly surprising given the applicant was self-represented, is not a lawyer, is from another country and English is his second language.

8    The Federal Circuit Court dealt in more detail with the applicant’s allegation of a denial of procedural fairness and found this not to be made out.

9    There can be no real criticism levelled at the Federal Circuit Court for the way it dealt with the applicant’s judicial review application, nor do I criticise the Minister on this application for the responses he has given to what are, at least as the papers currently stand, inadequately expressed grounds of appeal.

10    Nevertheless, I am satisfied it is in the interests of the administration of justice to grant an extension of time to the applicant.

11    The delay is of small compass – a matter of only days. In his affidavit in support of the application, the applicant stated he was not informed why the appeal was dismissed. That does not appear to be entirely correct. The Minister submits the applicant was present when the learned Federal Circuit Court judge read out his ex tempore reasons. Today, the applicant confirmed that he was present and he did listen to the reasons. He claimed he had a medical condition, but, as the Minister submits, there is no evidence beyond a bare medical certificate about his condition before this Court.

12    However, I am satisfied that the applicant would have struggled to understand why he had been unsuccessful on his judicial review and, like many people in his situation, was likely to have been unsure about how to proceed next. A delay of a few days in circumstances where this Court’s current lists of migration appeals mean that this matter will not be heard until well into 2018 should not shut the applicant out. There will be no relevant delay in dealing with this appeal, nor to any other litigants in the Court’s migration appeal list from the grant of this extension of time.

13    That is particularly so when the circumstances of the underlying claim the applicant makes involve claims to fear harm in his country of nationality and where what is at stake for him if he is not given an opportunity to appeal may be a forced return to that country after possibly some period of detention in Australia. One of the matters at stake for the applicant, therefore, is his liberty. He should not be subjected to those consequences unless the decisions which place him in that position have been made in accordance with Australian law and by a fair process. In circumstances where he has never had the opportunity for legal representation and there is a small delay, I am satisfied the course which best advances the administration of justice is to grant an extension of time and give him an opportunity for legal advice and representation. Even if the explanation for the delay lacks precision or even great persuasion, that should not be the determining factor in this case.

14    It is no part of my function on this application to assess for myself whether there is jurisdictional error in the Tribunal’s reasons, which, had the applicant been legally represented, he might have better identified before the Federal Circuit Court. Suffice to say the Tribunal’s decision is cursory in several respects although there are clear credibility findings against the applicant. Nevertheless, the Tribunal’s task of determining the complementary protection criteria did not wholly depend on its credibility assessment of the applicant, and, as I say, the Tribunal appears to have performed that task (on the basis of the structure of its reasons) in the most cursory of fashions.

15    I propose to grant the extension of time and make an order for a pro bono referral for advice and, if counsel considers it appropriate, the drafting of a notice of appeal. I will give sufficient time for the filing of an amended notice of appeal to allow counsel to be found, consultations to occur and advice to be given to the applicant. It will then be a matter for counsel whether she or he considers there are grounds of appeal that can be properly formulated. It is to be expected that those grounds of appeal will focus on jurisdictional error by the Tribunal because the applicant was not in a position to advance any real arguments about that before the Federal Circuit Court.

16    It will be a matter for counsel whether counsel requests a further referral to represent the applicant on the hearing of any appeal.

Associate:

Dated:    1 December 2017