FEDERAL COURT OF AUSTRALIA

BOH16 v Minister for Immigration and Border Protection [2018] FCA 317

ORDERS

THE COURT ORDERS THAT:

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

2.    The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1    This is an application for an extension of time to file a notice of appeal from a judgement of the Federal Circuit Court of Australia (FCCA): see BOH16 v Minister for Immigration and Border Protection [2016] FCCA 2649. The primary judge made orders and delivered judgement ex tempore on 13 October 2016 and published his written reasons on 24 November 2016.

2    The applicant requires an extension of time because, generally, a notice of appeal must be filed within 21 days after the date on which the judgment appealed from was pronounced or the order made: see r 36.03 of the Federal Court Rules 2011 (Cth). The time for filing the notice of appeal expired on 3 November 2016. The application for extension of time was filed on 21 November 2016; there was accordingly a delay of 18 days.

3    These are my reasons for dismissing the application with costs.

Background

4    The applicant is a citizen of Sri Lanka who arrived in Australia on 10 September 2012 as an unauthorised maritime arrival. He applied for a Temporary Protection (Subclass 785) visa on 8 September 2015. He claimed to fear harm if he was returned to Sri Lanka on the basis of his Tamil ethnicity, his imputed anti-government political opinion, as a failed asylum seeker and due to his illegal departure from Sri Lanka.

5    On 12 May 2016, a delegate of the Minister for Immigration and Border Protection decided to refuse to grant the visa. The delegate’s decision was a “fast track reviewable decision” and was referred by the Minister to the Immigration Assessment Authority (also referred to as the IAA) for review. On 10 June 2016, the Authority made a decision under Pt 7AA of the Migration Act 1958 (Cth) to affirm the delegate’s decision and issued its decision record.

6    The primary judge dismissed the applicant’s application for judicial review of the Authority’s decision with costs.

Principles for determination of the application

7    In written submissions filed by the Minister on 27 February 2018, the Minister relied on a summary of the principles which apply in determining an application such as this discussed by Derrington J in BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [2] relying on the judgement of Katzmann J in Dunlop v Fishburn (No 3) [2012] FCA 315 at [9] and [10] as follows:

9.    The Federal Court Rules 2011 (Cth) (“the Rules”) retain the 21 day time limit for filing a notice of appeal and the discretion given to the Court in the former Rules to extend that period: r 36.03. The discretion is wide. It is constrained only by the interests of justice and the subject-matter and purpose of the legislation. Section 37M(1) of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) provides that the overarching purpose of the civil procedure provisions of the Act and the Rules is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. That purpose includes the objective of disposing of all proceedings in a timely manner: FCA Act, s 37M(2). Section 37M(3) requires the Court to interpret and apply the Rules and exercise any power conferred by them in the way that best promotes the overarching purpose. Consequently, the discretion conferred by r 36.03 is to be exercised in that way.

10.    The requirement in the former Rules (O 52 r 15(2)) that an applicant show “special reasons” has been removed. Despite the absence of a requirement for special reasons (which, in any event, only meant something out of the ordinary (Jess v Scott (1986) 12 FCR 187)), it seems to me that the considerations guiding the exercise of the Court’s discretion set out by the Full Court in Parker v R [2002] FCAFC 133 at [6] continue to apply:

(a)    Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored;

(b)    The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

(c)    Other action taken by the applicant to challenge the decision is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

(d)    Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension but the mere absence of prejudice will not justify the grant of an extension;

(e)    The merits of the appeal are to be taken into account.

See also the discussions in Mohammed v Minister for Immigration and Border Protection (2015) 231 FCR 243 at 246–247, [15]; SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]–[19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349.

8    The Minister does not claim that he is prejudiced by the delay but nonetheless opposes the grant of an extension of time. He notes that the mere absence of prejudice does not justify the grant of an extension of time.

Explanation for delay

9    The applicant is a litigant in person. He explained the reason for delay at paragraph [3] of his affidavit sworn on 21 November 2016 as follows (as written):

I could not make this appeal within the required deadline, because:

(a)    I was given an impression from the past experiences of people whose cases were dismissed by the Federal Circuit Court that I had to apply to the Federal Court within 21 days from the written and signed judgement by the Federal Circuit Court Judge.

(b)    I found only 10 November 2016 that there was no written judgement in my case.

(c)    Due to poor comprehension of English I could not fill the application forms in time.

(d)    I am seeking legal advice to take my case forward.

(e)    I was concerned that my mother was arrested in lieu of me and was detained, and was released on bail.

10    The Minister submits that although the applicant is a litigant in person and accepts that the applicant’s explanation is at least plausible, it is not ordinarily a sufficient explanation for delay. The Minister accepted that the main focus of determination of the application should be the merit of the proposed grounds of appeal and submitted that they have no prospects of success.

Proceedings in the FCCA

11    The applicant was not legally represented at the hearing of his application for judicial review of the Authority’s decision. The grounds of the application were set out at J[39] as follows (as written):

When the IAA affirmed the decision not to grant a protection visa for me it erred in law. The IAA did not invite me to comment on or respond to the adverse information in which it relied to refuse my application. The IAA must have invited me to appear before the IAA to give evidence and present arguments relating to the issues raised in relation to my referred application with the IAA. The IAA has failed to consider my claim for complementary protection pursuant to section 36(2)(aa) of the Migration Act 1958 (Cth) whether there was a real risk that I would suffer “significant harm” if I were to return to Sri Lanka by reason of the enactment of the Immigrants and Emigrants Act (the I&E Act). As defined in s 36(2A), “significant harm” includes “degrading treatment or punishment” which in tum, includes acts that cause, and are intended to cause, “extreme humiliation which is unreasonable.” I contend that the I&E Act causes, and was intended to cause, extreme and unreasonable humiliation in making it an offence punishable by imprisonment of 1-5 years and a fine to depart Sri Lanka otherwise than from an approved port of departure and/or without valid documents.

On my arrival at the airport in Colombo, I would be questioned by the CID and I will be prosecuted for my illegal departure as a Tamil male. There is information before the IAA that there are potential risks of physical violence in prison.

I will have to suffer continually in detention until a relation and/or family bail me.

The IAA has not considered at all the complementary protection available to me in Australia.

12    Although the grounds were unnumbered, the primary judge referred to the question of the Authority’s procedural fairness obligations as “Ground 1”. The primary judge observed that the Authority’s procedural fairness obligations are stated in Div 3 of Pt 7AA of the Migration Act. This division, along with ss 473GA and 473GB, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule under s 473DA. The primary judge stated that, subject to s 473DB of the Migration Act, the review by the Authority is to be conducted on the papers, it does not involve the receipt of new information and it does not require the Authority to invite the applicant to appear before the Authority to give evidence and present arguments: J[47].

13    The primary judge said: First, the Authority had regard to the review material under s 473CB and it did not obtain any new information under ss 473DC to 473DF of the Migration Act. Second, that the Authority does not have a duty to get, request or accept new information: see s 473DC(2). The primary judge said that on the material before the Court, he was satisfied that the Authority complied with its procedural fairness obligations and statutory obligations in Div 3 of Pt 7AA of the Migration Act in the conduct of the review, that it had regard to the review material and that no new information was obtained or received that may have enlivened any obligation to put new information to the applicant: J[48]-[50]. In those circumstances, the primary judge found that the Authority was under no obligation to invite the applicant to comment on or respond to adverse information, or to invite the applicant to a hearing before it pursuant to s 473DC of the Migration Act and that Ground 1 fails to make out jurisdictional error: J[51].

14    The primary judge then turned to the applicant’s claims in relation to complementary protection, which he referred to as Ground 2. His Honour found that the Authority did consider the issue of significant harm and, in particular, the consequences of the applicant’s illegal departure, in light of the statutory definitions relevant under the Migration Act. The primary judge also found that the Authority made an express finding that the Immigrants and Emigrants Act 1949 of Sri Lanka was a law of general application and was not applied in a discriminatory manner. The Authority also made a finding that conditions in prison or on remand were not intentionally inflicted. On the material before the Court, the primary judge found that the Authority “properly considered the applicant’s claims in relation to complementary protection and made adverse findings that were open to it” and that Ground 2 fails to make out any jurisdictional error: J[52]-[53].

15    In relation to what the primary judge referred to as “Ground 3”, his Honour found that “it is apparent that the Authority took into account the prosecution that the applicant would face under the Immigrants and Emigrants Act and made findings that were open.” The primary judge said that “Ground 3 is in substance, an invitation for this Court to engage in an impermissible merits review. This Court does not have power to make fresh findings of fact in relation to the merits of the applicant’s claims and evidence”. Accordingly, Ground 3 failed to make out any jurisdictional error: J[54].

16    In relation to what the primary judge referred to as “Ground 4”, the primary judge found that the “Authority took into account the conditions to which the applicant would be exposed in prison or on remand and made findings that were open to it” and that “Ground 4 is in substance, an invitation to this Court to engage in an impermissible merits review”. Ground 4 therefore also failed to make out jurisdictional error: J[55].

17    In relation to what the primary judge referred to as “Ground 5”, his Honour found that “it is apparent that the Authority did consider the issue of complementary protection in relation to the applicant’s claims. The adverse findings made by the Authority were open to it”. Ground 5 therefore also failed to make out jurisdictional error: J[56].

The appeal

18    The draft notice of appeal proposes three grounds as follows (as written):

1.    That there is a jurisdictional error in the Federal Circuit Courts decision.

2.    The reasons provided by the [Authority] to the [Minister] in support of the [Authority’s] recommendation that the Appellant was not a person to whom Australia has protection obligations were neither logical nor rational.

3.    Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed.

19    Among other remedies, in proposed order 3, the applicant seeks a declaration that the Authority failed to observe the requirements of procedural fairness in recommending to the Minister that the applicant was not a person to whom Australia has protection obligations. The hearing of the application proceeded on the basis that the proposed declaration would be treated as raising a ground that the Authority failed to observe the requirements of procedural fairness.

20    The applicant did not file written submissions. The Court was assisted by an interpreter. The applicant requested that a friend (who can speak English) sit at the bar table with him and assist him to make submissions. This was allowed on the basis that the proposed submissions were conveyed in Tamil and translated for the Court by the Court appointed translator so that the applicant could understand the submissions made on his behalf and participate in them.

21    The applicant was invited to make submissions concerning the proposed grounds. The submissions may be summarised as follows:

(1)    The applicant was suffering from depression and alcohol addiction during his detention so that he was in shock and could not remember some things when he appeared at his interviews. (The decision record refers to an entry interview, an interview with a delegate in connection with an application he had made for a protection visa and an interview with a delegate in connection with his application for a temporary protection visa.)

(2)    He was told by some of the people in camp that the Authority would interview him and then make a decision. Unexpectedly, he was advised that the Authority had rejected his application for a temporary protection visa. He had no legal advice and could not understand the different procedures and had to rely on advice from other people in the camp. As a result, he did not provide important documents at relevant times in the various proceedings and he does not know to whom to provide those documents now.

(3)    He has a report dated in March 2017 from a psychiatrist which says that he has had depression.

(4)    He is no longer reliant on alcohol. He now intends to obtain legal advice about how he should proceed and he would like some time to be able to do that.

(5)    He cannot elaborate on the first ground of the draft notice of appeal.

(6)    In relation to the second ground of the draft notice of appeal and the procedural fairness ground, he was told at the camp that he would have an interview with the Authority before a decision was made but that did not occur. Although he asked his case manager for a copy of a CD recording of his interviews with the delegate, he was not given one.

22    The Minister submitted that:

(1)    None of the applicant’s oral submissions identify a jurisdictional error by the Authority or appealable error by the primary judge.

(2)    The only aspects of the proposed grounds of appeal which could conceivably identify an appealable error in the primary judge’s decision, or jurisdictional error in the Authority’s decision, are the contentions that the Authority’s conclusion that the applicant is not owed protection obligations was neither logical nor rational and the procedural fairness issue raised by the proposed declaration.

(3)    The first ground in the notice of appeal must fail since it speaks of a “jurisdictional error” by the primary judge and it is unparticularised. Further, there is nothing in the matters raised by the applicant in his oral submissions which advances the ground.

(4)    The applicant has not filed an amended draft notice of appeal, and accordingly, the third ground has no substance.

(5)    The applicant’s claim that he was in shock at the time he gave evidence to the delegates (in an attempt to explain inconsistencies in his evidence) and his claim that he was not given CDs of his interviews with the delegates were raised before the primary judge (referred to at J[40] and J[45]). Those claims reveal no jurisdictional error by the Authority or appealable error by the primary judge. In so far as the applicant’s oral submissions might have suggested he had similar problems at the proceedings in the FCCA, the primary judge’s reasons indicate that he was able to participate in those proceedings.

(6)    The ground that the IAA’s conclusion was not rational or logical was not raised in the FCCA and it would require leave to be argued on appeal. It is a bare assertion. The Authority’s decision record reveals a detailed consideration of the differing claims made by the applicant at various stages leading up to its decision and it provided cogent reasons for reaching its adverse findings. There could be no error in the Authority’s finding that the applicant had given inconsistent evidence and that his evidence was “highly problematic” since he admitted to the delegate at his interview concerning his temporary protection visa that some of his earlier claims were not true or were incorrect. It was open to the Authority to find that the applicant had not “presented a credible, detailed or plausible account of the events which led to his decision to leave Sri Lanka”. The Authority then considers the applicant’s claims from the perspective of both the Refugees Convention and complementary protection.

(7)    The procedural fairness ground was raised before the primary judge and it is identified as “Ground 1”. The primary judge’s reasons for dismissing it are set out at J[47]-[51]. The primary judge correctly set out the scheme of Div 3 of Pt 7AA of the Migration Act and found that the Authority had regard to the review material referred to it and no new information was received by the Authority: J[47]-[48], [50]. Having regard to the terms of s 473DA, Div 3 and ss 473GA and 473GB are together an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. It has no obligation to get, request or accept new information or interview a referred applicant: s 437DC(2). To the contrary, s 473DB provides that it must conduct a review by considering review material provided to it under s 473CB without accepting or requesting new information and without interviewing the referred applicant. The primary judge was correct to conclude at J[51] that, in the circumstances, the Authority was under no obligation to invite the applicant to comment on, or respond to, adverse information or to invite the applicant to an hearing before it. In those circumstances, this ground has no merit.

23    I accept the Minister’s submissions. As I indicated at the hearing, had any of the proposed grounds of appeal had sufficient merit to warrant consideration by an appeal court, the fact that the applicant (as a litigant in person who does not speak English) had no access to the primary judge’s written reasons until after the period for lodging a notice of appeal in accordance with the Federal Court Rules had expired, I would have been inclined to grant the extension of time. However, I am not satisfied that the proposed grounds do have sufficient merit having regard to the submissions of the parties.

24    Accordingly, at the conclusion of the hearing, I made orders that the application be dismissed. The applicant made submissions that he was not it in a position to pay the Minister’s costs if they were awarded in the usual way. However, that factor should not prevent the usual order being made.

25    The applicant made several submissions concerning his desire to provide new evidence relating to his claims and his uncertainty as to the process by which that might be done. He asked the Court for time to do so. As I understand it, the nature of the evidence which he wishes to provide goes to the merits of his claims and accordingly it was not appropriate to grant an adjournment. The Minister’s representative observed the standards of a model litigant in assisting the applicant to understand that s 417 of the Migration Act may provide an avenue to be pursued should he secure the legal assistance which he submitted he was seeking to obtain.

Associate:

Dated:    13 March 2018