FEDERAL COURT OF AUSTRALIA

SZNJG v Minister for Immigration and Border Protection [2018] FCA 334

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an application for an extension of time to appeal from orders made and judgment given by the Federal Circuit Court of Australia (Federal Circuit Court) on 16 August 2017 dismissing an application for judicial review of a decision of the second respondent (Tribunal): SZNJG v Minister for Immigration and Border Protection [2017] FCCA 1945 (SZNJG). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister).

2    The application is made pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (Rules). Rule 36.03 of the Rules requires an appellant to file a notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made. In this case that date was 16 August 2017. Accordingly, any appeal was required to be filed by 6 September 2017. The application before the Court was filed on 15 September 2017 and is therefore 9 days out of time.

background

3    The applicant arrived in Australia on 9 July 2008 on a Tourist (Subclass 676) visa. He applied for a protection visa which was refused on 27 October 2008.

4    On 12 March 2014, as a result of the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the applicant made a second application for a protection visa.

5    On 11 November 2014 that second application was refused by a delegate of the Minister. The applicant applied to the Tribunal for review of the delegate’s decision. On 27 July 2016 the Tribunal affirmed the decision under review.

6    The applicant claimed to fear harm because of his Catholic faith and his membership of the communist party in India. The Tribunal did not accept that he was an office bearer in the communist party; that he organised or was involved in political protest activities in his local area; that he was attacked or injured as claimed; that his family home was burned down resulting in his brothers’ deaths; or that he was forced to flee his local area to avoid harm from political opponents. As a result the Tribunal did not accept that there was a real risk that the applicant would suffer significant harm if removed from Australia to India due to his past political involvement.

7    The Tribunal accepted that the applicant was a Catholic and noted that his main fear of returning to India was because of his religion. The Tribunal acknowledged that there were reports of religiously motivated violence in India at times, including against Catholics, but observed that generally religious freedom is respected and protected in India. It also noted the size of the Christian population in India. The Tribunal noted that the applicant said he had suffered no harm in the past because of his religion but that the situation in India had changed. However, after considering country information, the Tribunal concluded that there were no substantial grounds for believing that there was a real risk the applicant would suffer significant harm on return to India because of his religious activities.

8    On 30 August 2016 the applicant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court.

Proceeding before Federal Circuit Court

9    In his application before the Federal Circuit Court the applicant raised the following grounds (as written):

1.    Jurisdictional error

2.    Breach of procedural fairness

3.    Breach of natural justice

10    On 12 May 2017 the primary judge adjourned the proceeding pending the outcome of the Minister’s application for special leave to appeal to the High Court of Australia against the decision in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 on the basis that, whilst not pleaded, the Minister had raised the issue of the existence of a certificate issued pursuant to s 438 of the Migration Act 1958 (Cth) (Act).

11    After the High Court refused that application for special leave to appeal, on 26 May 2017 the primary judge made orders granting leave to the applicant to file and serve any amended application, affidavit evidence and/or submissions. The applicant did not amend his application such that the grounds before the primary judge remained as set out at [9] above.

12    The matter was listed for hearing on 16 August 2017. At the conclusion of the hearing the primary judge delivered ex tempore reasons and made orders dismissing the application.

13    The primary judge rejected the first ground on the basis that the generalised assertion of jurisdictional error did not make out any relevant legal error. He also rejected grounds two and three noting again that they were generalised in nature and that, on the face of the material before the court, there was no breach of procedural fairness or breach of natural justice in the course of the hearing before the Tribunal.

14    The primary judge then considered whether any jurisdictional error arose as a consequence of the certificate issued pursuant to s 438 of the Act.

15    Before the primary judge the Minister accepted that, for the reasons given in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1, the certificate was likely to be invalid. The certificate was not disclosed to the applicant during the review.

16    The certificate and the documents the subject of it were in evidence before the primary judge. Those documents, which are also before this Court, comprised a minute generated within the Minister’s department, addressed to the Minister in relation to a request by the applicant that the Minister exercise his public interest power under s 417 of the Act.

17    The primary judge found that the material the subject of the certificate was not relevant to the application for review and accepted the Minister’s submission that the Tribunal’s reasons reflected that the Tribunal did not act on that material. The primary judge found that the Tribunal did not have regard to the material the subject of the certificate and that the information the subject of the certificate was not credible, relevant and significant. The primary judge accepted that, in the circumstances, there was no practical injustice that had been occasioned to the applicant by reason of the failure to disclose the certificate or the material the subject of it and that therefore no jurisdictional error was made out: SZNJG at [27]-[29].

18    The primary judge was also satisfied that the material the subject of the certificate could not possibly have affected the outcome of the review and that, if there was any error, for discretionary reasons relief should be refused: SZNJG at [30].

the application for an extension of time

19    The applicant’s application for an extension of time was accompanied by an affidavit which had been signed by the applicant on 14 September 2017 and a draft notice of appeal, albeit the latter was not annexed to the affidavit. The draft notice of appeal had not been served on the solicitors for the Minister prior to the hearing. No point was taken by the Minister in relation to that omission. But because the draft notice of appeal came to light at the hearing, the Minister did not press his notice of objection to competency based on the applicant’s failure to provide a draft notice of appeal.

20    In the applicant’s draft notice of appeal he raises two grounds as follows:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

21    In his affidavit the applicant gave the following explanation for the delay:

I filed for judicial review application before the Federal Judge. Honourable Judge dismissed my application. I was not represented by the any solicitor or barrister. Therefore, I was not aware of time limit for notice of appeal.

22    At the hearing the applicant submitted that he also experienced delay because he did not have the letter from the Federal Circuit Court.

23    The applicant did not provide any written submissions to the Court. When invited to make submissions at the hearing he said that the situation in the place where he comes from is different to when he first came to Australia. He said that he could have gone back in the last 10 years but that he now cannot afford to go back because of the situation there. He requested that his matter be sent back to the lower court so that he can explain the circumstances and the situation he is facing. He also said that he finds it difficult to speak freely about the matter. The applicant asked for one more opportunity to present his case properly.

Legal principles governing an application for an extension of time

24    The principles relevant to the exercise of the power of the Court to extend time can be summarised as follows:

(1)    whether the applicant has provided an acceptable explanation for the delay in lodging the application;

(2)    whether the respondent would suffer prejudice in light of the delay, should an extension of time to lodge the application be granted; and

(3)    the merits of the substantial application,

see Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-349.

25    Relevantly, in MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 Mortimer J said at [5]-[6]:

5.    The discretion to extend time is reposed in the Court to ensure that the interests of the administration of justice are served, and parties whose substantive appeals should be heard and determined in accordance with law are able to secure that outcome. Identifying which parties fall into that category requires analysis of the factual circumstances in each case. Sometimes, matters such as lack of legal representation, little or no proficiency in English, and little or no understanding of the Australian legal system may combine to suggest a delay is explicable. Other factors such as the length of the delay, the steps taken by an applicant during the running of the time period, and the time at which the applicant received a copy of the Court’s orders and reasons may be significant. The party’s personal circumstances may need to be considered. The importance of the subject matter of the proceeding to the party requesting an extension of time may also be relevant. The more there is at stake, the more confident the Court may need to be before it refuses an extension of time, especially if the delay is not significant. The manner in which a discretion such as this should be exercised cannot be answered by general statements about certain attributes or the circumstances of a party being insufficient.

6.    Even in circumstances where the Court is persuaded on the basis of the kinds of factors referred to that an extension of time may be appropriate, the prospects of success of any appeal may be determinative of the manner in which the Court’s discretion should be exercised. That is because it is not in the interests of the administration of justice to utilise the resources of the Court and of other parties where there is no realistic prospect the appeal will succeed if an extension is granted. Such a process also exposes an applicant to the risk of significantly greater legal costs if the appeal is unsuccessful and the Court makes the usual orders as to costs.

consideration

Delay and prejudice

26    Here the delay is a relatively short period of nine days. The applicant provides two reasons for the delay: first, he was unrepresented and did not understand the time limits imposed for the filing of appeals; and secondly, because he did not receive a “letter” from the court which, I infer, is a reference to the written reasons of the primary judge.

27    The Minister submitted that there is no persuasive evidence from the applicant before the Court as to what steps he took to learn of his rights of appeal. That is so but the applicant is not legally represented and thus may not have immediately understood his appeal rights or the time within which he would have to commence an appeal.

28    In relation to the lack of written reasons, the Minister submitted that the primary judge’s reasons were published on 20 September 2017, five days after the applicant commenced this proceeding and therefore, as he did not have those reasons when he commenced the proceeding, it did not seem that he was waiting for them in order to file the application. That is a possible inference that can be drawn but, on the other hand, an equally available inference is that the applicant simply gave up waiting, particularly if he became aware of the time constraints in the meantime.

29    While the reasons given are not fulsome I accept them as an explanation for what is a relatively short delay.

30    The Minister did not claim to be prejudiced by the delay.

31    Thus, it is the merits of the substantive application which will be determinative of the way in which the Court should exercise its discretion. I turn to consider that issue.

Merits of the proposed appeal

32    The Minister submitted that the first proposed ground of appeal was in the nature of a “template ground” – evident from the use of the term “FM”, presumably meaning Federal Magistrate, and the reference to s 91R of the Act which has no application to this matter where the Tribunal was considering the applicant’s claims by reference to s 36(2)(aa) of the Act. Putting that to one side, upon examination, it is clear that this ground does not have reasonable prospects of success. The applicant has not particularised the aspects of the claims that the Tribunal is said to have ignored which the primary judge then failed to consider and what obligations the Tribunal is alleged to have failed to have observed. This ground appears to be no more than a disagreement with the primary judge’s reasons.

33    The second ground is, in effect, a bald assertion that the primary judge made an error. The grounds raised by the applicant before the primary judge were bare assertions of jurisdictional error on the one hand and denial of natural justice and procedural fairness on the other. The applicant was given an opportunity to amend his application on two occasions in the court below and to elucidate his claims by way of submissions before the primary judge. No particulars of the claims were provided by way of an amended application or written submissions. Nor did the applicant’s oral submissions before the primary judge provide any further particulars or explain how it was that the Tribunal erred beyond the assertions made in the application as filed. Once again this ground does no more than express disagreement with the reasons of the primary judge.

34    The applicant’s submissions made before me did not identify any appellable error in the decision of the primary judge. They were an attempt at impermissible merits review.

35    There is no merit in the proposed appeal.

36    As the Minister submitted the only substantive issue that arose for consideration before the primary judge concerned the certificate issued pursuant to s 438 of the Act in relation to which no appeal ground is raised in the draft notice of appeal. But for completeness I have considered the primary judge’s findings in relation to that issue and I accept the Minister’s submission that there was no error in his Honour’s treatment of this issue. No substantive issues arise from the non-disclosure of the certificate.

37    The Minister accepted that the certificate was likely invalid and that, as a consequence, the Tribunal may have made a jurisdictional error if, having acted on the invalid certificate, it failed to comply with its statutory obligations, including its obligation to give particulars or information within the meaning of s 424A(1) of the Act. However, it could not be said that the Tribunal acted on the certificate. So much is evident from the Tribunal’s reasons.

38    Further, the documents the subject of the certificate could not have impacted on the outcome of the review given their content. Having regard to those documents, there is no basis to infer that the Tribunal considered that the content of any of the documents the subject of the certificate would be the reason, or part of the reason, for affirming the decision under review for the purpose of s 424A or that their content related to issues concerning the decision under review for the purposes of s 425. I accept the Minister’s submission that there was no basis upon which a failure to disclose the documents could have constituted a denial of procedural fairness.

conclusion

39    For the reasons set out above the application for an extension of time should be dismissed and the applicant should pay the Minister’s costs. I will make orders accordingly.

Associate:

Dated:    15 March 2018