FEDERAL COURT OF AUSTRALIA

BYY15 v Minister for Immigration and Border Protection [2018] FCA 116

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the first respondent, as agreed or as assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

Introduction

1    This is an application made under r 36.05(1) of the Federal Court Rules 2011 (Cth) (the “Rules”) for an extension of time within which to file a notice of appeal against a decision of the Federal Circuit Court of Australia (the “FCC”). On 13 September 2016, the FCC dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the “AAT”) to affirm a decision of the first respondent, by his delegate, not to grant the applicant a Protection visa: BYY15 v Minister for Immigration and Border Protection [2016] FCCA 2772. The applicant filed the application for an extension of time and supporting affidavit on 19 October 2016 and sought an extension of 15 days.

2    The applicant was self-represented before the FCC, as he is on this application. The applicant did not file any written submissions in support of his application.

Background

3    The applicant is a Sri Lankan citizen of Sinhalese ethnicity. On 16 January 2013, the applicant lodged a valid application for a Protection visa. In order to obtain a Protection visa, the applicant needed to satisfy the refugee criteria set out in s 36(2)(a) or the complementary protection criteria set out in s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”).

4     The applicant claims to fear harm of persecution in Sri Lanka, citing a dispute with an individual named Gemunu. The applicant says he asked Gemunu to arrange a visa for him, as he planned to return to South Korea, where he had previously worked. He claims to have borrowed money to pay Gemunu, leading to pressure from creditors at a later stage. However, the applicant claims that Gemunu was unable to obtain the visa following the death of a politician who brokered such arrangements. The applicant says Gemunu would not return the money for the visa and eventually, the applicant lodged complaints with the police. After becoming aware of the complaints, the applicant claims that Gemunu began to threaten him. The applicant also claims he is at risk of harm from Sri Lankan authorities for leaving the country illegally.

5    The delegate of the first respondent refused to grant the visa pursuant to s 65 of the Act on 1 May 2014 and the AAT affirmed this decision on 2 September 2015.

Proceedings before the AAT

6    The applicant gave evidence before the AAT with the assistance of an interpreter and a registered migration agent. The AAT took issue with some of the applicant’s evidence, noting inconsistencies between the applicant’s oral and written evidence. The applicant provided a police report in support of his claims that complaints had been made to the police. The AAT considered, but gave no weight to, this document on the basis of concerns with its authenticity and inconsistencies between it and other evidence. The AAT was willing to accept that Gemunu may have threatened the applicant, but concluded that the applicant “exaggerated the threats”. Further, based on the applicant’s evidence, the AAT found that any issues with moneylenders had been resolved. The AAT accepted that the applicant may be identified as a person who has unsuccessfully sought asylum in Australia if he is returned to Sri Lanka, but did not accept that the applicant faces a real chance of serious harm now, or in the reasonably foreseeable future, because he left Sri Lanka illegally or because he applied for asylum.

7    The AAT concluded that the applicant’s fear of persecution was not well founded. Further, the AAT held, for the purposes of s 36(2)(a) of the Act, that the dispute was about money and did not involve reasons for persecution which could lead the applicant to be classified as a refugee pursuant to the 1951 Convention relating to the Status of Refugees (i.e. race, religion, nationality, membership of a particular social group or political opinion). The AAT also did not accept, for the purposes of s 36(2)(aa) of the Act, that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, there was a real risk he would suffer significant harm.

Proceedings before the FCC

8    The application for judicial review in the FCC did not identify any grounds for review. The supporting affidavit referred to the AAT applying the wrong test, but did not disclose the basis upon which this claim was made. At the hearing, the applicant claimed that he disagreed with the findings made by the AAT. In particular, the applicant claimed the AAT had reached an incorrect conclusion in respect of the police report, which the AAT considered but did not place any weight on, and did not consider his evidence of threats. The learned primary judge found the complaint about weight invited the FCC to engage in an impermissible merits review. The primary judge also dismissed the applicant’s complaint that the AAT had not considered his evidence of threats. The primary judge concluded that the AAT had complied with its obligations as to procedural fairness and that its decision did not contain jurisdictional error: BYY15 v Minister for Immigration and Border Protection [2016] FCCA 2772 at [12]-[13].

Application for Extension of Time

9    The application for extension of time was supported by an affidavit comprising the following:

1.    I am the Applicant.

2.    I have received the Federal Court order at the end of month September 2016.

3.    I annexed the order was granted from the Federal Circuit Court on 13 September 2016.

4.    After I received the documents, I was seeking legal help to file my appeal to the Federal Circuit Court.

5.    When I was seeking legal help, I was fallen ill and could not attend to day today work.

6.    The delay acknowledgement and my illness caused my appeal to the Federal Court delayed.

7.    The above statements are true based on my own knowledge and true to the best of my knowledge, information and beliefs based on my inquiries. (sic)

10    A medical certificate dated 17 October 2016 is attached to the affidavit as exhibit AB1. The certificate states:

This is to certify that [the applicant] Attended Siddartha Ayurvedic Centre on the 17/10/2016 and will be unfit to attend work from 20/10/2016 to 3 (Thurs) (sic) (inclusive) due to personal illness.

11    The applicant’s draft notice of appeal identifies the following grounds of appeal:

1.    The proceeding in the order which the application relates was pronounced involves a question of law.

2.    There is a jurisdictional error occurs in the order (sic).

Consideration

12    In exercising the Court’s discretion in an application for an extension of time, factors to take into account include the extent of the delay, any prejudice a respondent might suffer because of the delay, the explanation for the delay and the merits of the proposed appeal: Singh v Minister for Immigration and Border Protection [2017] FCA 150 at [19]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 - 349.

13    I accept the delay was not particularly lengthy and the first respondent concedes there is no prejudice to him if the Court were to grant the extension of time sought, beyond the public interest in the finality of administrative decision making. However, I nonetheless reject the applicant’s application because of his explanation for the delay, which is deficient, and because his proposed appeal is unmeritorious.

Explanation for the delay

14    I agree with the first respondent’s submission that the applicant has not provided a proper explanation for the delay.

15    The period of time addressed by the medical certificate does not pertain to the 21-day period within which the applicant was entitled to file a notice of appeal under r 36.03 of the Rules. It was obtained after the time for filing an appeal had already expired and the period of illness does not include any part of the prescribed 21-day period. Moreover, between the date it was obtained and the date from which it states the applicant will be “unfit to attend work” (20/10/2016), the applicant filed the application for extension of time and supporting affidavit.

16    Further, the content of the supporting affidavit was equally unhelpful in establishing an explanation for the delay. The content is nearly identical to that described in an affidavit filed by the applicant in MZABV v Minister for Immigration & Anor [2017] FCA 105. In that case, the applicant filed an application for an extension of time and then sought an adjournment of the hearing. Pagone J said at [5]:

It is unfortunate that certificates of this kind are provided to the Court because they are unhelpful to the Court or to the applicant for whose benefit they have been obtained, perhaps upon the payment of a fee. The Court needs information upon which it is able to make a decision about whether an adjournment ought to be granted, and a medical practitioner ought to know that it is important to provide material for the Court to determine whether the significant step of an adjournment is warranted. That would usually require a certificate to be meaningful to enable the Court to make a decision. An application for an adjournment, in generally similar circumstances, was rejected by Justice Lindgren in the case of NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 in which his Honour said at [5] to [10]:

5.    The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:

This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.

6.    The certificate of the same date in respect of the female appellant states:

This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.

7.    The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.

8.    I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.

9.    If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.

10.    I take into account the fact that the two medical certificates are structured identically, use the expression ‘he/she’, and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking.

11.    In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]–[8] above.

What that case indicates is that what needs to be provided in a medical certificate in order for the medical certificate to be meaningful is the basis to establish why it is or how it is that an appellant suffering from a medical condition would be unfit for participation at a hearing in Court. A description such as that of having a “medical condition” and that a person is “unfit for work” for nine days are unhelpful, relevantly uninformative and unsatisfactory. The certificate in this case, and the statement by the applicant in this case, do not enable the court to evaluate why it is or how it is that the applicant’s condition would prevent him from attending the court and, therefore, do not establish a responsible foundation to adjourn a court hearing. Statements of this kind do not help the patient in making the case that he needs. Doctors providing certificates of this kind assist nobody. Accordingly, to the extent that the applicant’s request in his fax is to be treated as an application for an adjournment, it is rejected.

Notwithstanding that these comments were made in respect of the application for an adjournment, rather than the extension of time application, Pagone J’s reasoning, in my view, applies to the explanation for the delay in the present case. In the present case, the medical certificate does not address whether, and if so, why the “personal illness” would have prevented the applicant from seeking legal help and filing a notice of appeal during the period in which he was entitled to do so. At best, it is evidence that the applicant was unwell for part of a period taking place after the time for filing the notice of appeal had already expired. The certificate appears pro forma and does not establish any connection between illness and the failure to file an appeal during the relevant 21-day period so as to provide meaningful evidence. It follows that the applicant’s reliance on the medical certificate is misconceived. The affidavit and medical certificate do not establish any proper foundation to enable the Court to grant the extension of time on the basis of the applicant’s illness.

17    I also do not accept there was any delay in the applicant receiving the decision of the FCC. In his affidavit, the applicant deposes that he “received the Federal Court order at the end of month September 2016” (sic). However, the judgment was delivered ex tempore at the hearing on 13 September 2016 at which the applicant was present. An interpreter was also present. I find that the applicant was aware of the FCC decision as of that date.

18    Given the applicant was self-represented before the Court, I accept, inferentially, he was unable to obtain legal assistance. However, the claim that he was trying to collect money for legal assistance, made at the hearing of this application is also not, of itself, an adequate explanation for the delay.

Merits of the appeal

19    A failure to provide a proper explanation for the delay may not in itself be sufficient reason to refuse an extension of time, particularly if the proposed appeal is meritorious: Gulati v Minister for Immigration and Border Protection [2017] FCA 255 at [17].

20    As set out above, the applicant’s draft notice of appeal identifies the following grounds of appeal:

3.    The proceeding in the order which the application relates was pronounced involves a question of law.

4.    There is a jurisdictional error occurs in the order (sic).

21    For the purposes of considering the merits of the appeal in an application for an extension of time, the prospects of success should be evaluated on a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62]-[66]; Jackamarra v Krakouer (1998) 195 CLR 519 at [7]-[9].

22    As outlined above, the applicant made three complaints about the AAT decision before the FCC (as well as expressing his general dissatisfaction with the decision): the AAT applied the wrong test; the AAT did not consider evidence of threats; and the AAT reached an incorrect conclusion in relation to the police report. If the applicant’s claim that the AAT applied the wrong test is taken to be an assertion that the AAT incorrectly applied s 36(2) of the Act, it is misconceived. The AAT correctly identified the statutory criteria set out in each of s 36(2)(a) and s 36(2)(aa) of the Act. It went on to assess the applicant against each set of criteria separately, on the basis of the material before it. On appeal to the FCC, the learned primary judge correctly considered how the AAT identified and separately applied the criteria in each of s 36(2)(a) and s 36(2)(aa) of the Act at par [10] to par [12] of her Honour’s reasons: BYY15 v Minister for Immigration and Border Protection [2016] FCCA 2772.

23    The applicant’s concern that the AAT had not considered evidence of threats was also properly addressed by the primary judge, who identified that the AAT had considered such evidence, but “did not accept the applicant’s veracity with respect to aspects of his claim”: BYY15 v Minister for Immigration and Border Protection [2016] FCCA 2772 at [8]. Further, the primary judge correctly characterised the issue of weight given to the police report as a matter for the AAT. It was not open to the FCC, as it is not open to this Court, to engage in a fact finding process about the merits of the applicant’s case before the AAT: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].

24    The AAT’s decision was not infected by jurisdictional error and accordingly, the primary judge did not err in ordering the judicial review application be dismissed. There was no basis upon which the FCC could interfere with the decision of the AAT. The grounds of appeal identified in the draft notice of appeal are not sufficiently arguable. In the absence of any meaningful grounds for appeal, granting the extension of time would be futile.

Conclusion

25    The application for an extension of time is dismissed with costs as agreed or as assessed.

Associate:

Dated:    19 February 2018