FEDERAL COURT OF AUSTRALIA

BLC15 v Minister for Immigration and Border Protection [2018] FCA 621

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is refused.

2.    The applicant pay the first respondent’s costs of and incidental to this application, 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

(Ex tempore)

BEACH J:

1    The applicant has sought an extension of time under rule 36.05 of the Federal Court Rules 2011 (Cth) within which to appeal from the orders made by the Federal Circuit Court on 21 October 2016. That Court dismissed the applicant’s application for judicial review of a decision made on 15 June 2015 by the Administrative Appeals Tribunal (the Tribunal).

2    For the reasons that follow, I would refuse the application for an extension of time.

Background

3    The applicant is a citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 11 August 2012.

4    On 5 December 2012, he applied for a protection visa, assisted by a migration agent. On 19 February 2014, a delegate of the first respondent (the Minister) refused to grant the applicant a protection visa. On 28 February 2014, the applicant applied to the Tribunal for a review of the delegate’s decision with the assistance of a migration agent. On 30 March 2014, the applicant’s migration agent sent a lengthy written submission to the Tribunal. On 4 December 2014, the Tribunal invited the applicant to attend a hearing. On 26 February 2015 and 3 June 2015, the applicant attended hearings before the Tribunal with the assistance of his migration agent and an interpreter. After the second hearing, the applicant’s migration agent submitted further written submissions to the Tribunal.

5    On 15 June 2015, the Tribunal affirmed the delegate’s decision. On 20 July 2015, the applicant sought judicial review of the Tribunal’s decision by an application filed in the Federal Circuit Court. The application for judicial review raised only the following ground:

The Tribunal Member asked me questions which were not relevant to my case. I believe the member did not consider my claims and I was not treated fairly.

6    No particulars were given in the application.

7    The primary judge disposed of this ground in the following terms (at [24] and [25]):

Considered alone, this ground discloses no jurisdictional error. It does not identify the questions the applicant claims the Tribunal asked which were not relevant to the applicant’s case. Nor does the ground identify the facts or matters on which the applicant relies for claiming that he was not treated fairly. Further, the claim the Tribunal did not consider the applicant’s claims cannot be made out. My summary of the applicant’s claims for protection, and the Tribunal’s reasons for rejecting those claims, show that the Tribunal identified, and considered the claims the applicant made; and that the conclusions the Tribunal reached were reasonably open to it for the reasons it gave.

At the hearing, I invited the applicant to make submissions in relation to this ground. The applicant said he emphasised to the Tribunal again and again that he was a fisherman and that, if he were to return to Sri Lanka, he will be persecuted and harmed. This does not disclose any jurisdictional error; it expresses the applicant’s disagreement with the Tribunal’s not accepting the applicant will suffer harm because he is a Tamil fisherman. The Tribunal considered, but rejected those claims; and it rejected those claims for reasons that were reasonably open to it.

Application for extension of time

8    The primary judge’s orders were made on 21 October 2016. Accordingly, the applicant was required to file his notice of appeal by no later than 11 November 2016 (that is, within 21 days). However, the applicant did not file his notice within the required time. On 30 November 2016 he filed an application (albeit dated 29 November 2016) seeking an extension of time within which to appeal. The application was supported by an affidavit affirmed by the applicant on 29 November 2016.

9    The affidavit stated:

1.    I am the Applicant.

2.    I annexed the order was granted from the Federal Circuit Court on 21ST OCTOBER 2016

3.    After the order was granted, I was seeking legal help to file my appeal to court.

4.    I was fallen ill and could not attend to day today work.

5.    Because I was seeking legal help and fallen ill, my appeal to the Federal Court was delayed.

10    Annexed to the applicant’s affidavit were copies of:

(a)    the order made by the primary judge on 21 October 2016; and

(b)    a Medical Certificate dated 28 November 2016 from the Dandenong Locum Service which stated the following:

THIS IS TO CERTIFY THAT

Mr [BLC15] has a medical condition and unfit for work from 28/11/2016 to 30/11/2016 inclusive.

11    The applicant also filed a draft notice of appeal seeking to raise two 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].

12    No particulars have been given. On 14 December 2016, a Deputy District Registrar directed that the applicant file and serve a draft notice of appeal setting out particularised grounds of appeal within 10 business days of the direction. The applicant has not filed any further particularised grounds.

13    Before proceeding further, I should note that the hearing of this application was postponed pending the determination of the appeal to the High Court from the Full Federal Court decision in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556. That appeal has now been dismissed (SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; [2017] HCA 34).

14    I should also note another matter. This matter came on for hearing before me on 27 February 2018. On that occasion the hearing of the application proceeded with the assistance of a Tamil interpreter. But part way through the hearing, the interpreter indicated that he perceived a difficulty with the applicant’s comprehension. I asked the applicant what language he was comfortable with. He said both Tamil and Sinhalese. He said that although he was a Tamil he grew up in Negombo, Sri Lanka. He said that since childhood he had been speaking Sinhalese. Now I note that before the Tribunal and the primary judge the applicant was content with a Tamil interpreter. In all the circumstances I decided to adjourn the matter until today so that I could have an interpreter in both languages present. Today, I had two interpreters present, but the translation was done principally by the Sinhalese interpreter. There does not seem to have been a difficulty in comprehension this afternoon.

15    The principles governing applications for extensions of time within which to appeal are not in doubt and I have set them out previously in Sivaprakasam v Minister for Immigration and Border Protection [2014] FCA 871 at [21] to [24].

16    Consideration needs to be given to the length of the delay, the explanation for the delay, any prejudice to the other parties and the merits of the proposed appeal (Adhikaree v Minister for Immigration and Border Protection [2014] FCA 564 at [5] and Baig v Minister for Immigration and Border Protection [2014] FCA 855 at [4]).

17    The absence of prejudice to the Minister by reason of the applicant’s delay is not sufficient to warrant the grant of an extension of time (SZQHK v Minister for Immigration and Citizenship (2012) 125 ALD 458; [2012] FCA 178 at [67]).

18    Generally, where a proposed appeal has little, if any, prospects of success, an extension of time will be refused, even if the period for the extension is short (Wei v Minister for Immigration and Border Protection [2014] FCA 539 at [22]).

19    Now the Minister before me accepts that the time sought for the extension is relatively short and that he will not suffer undue prejudice if the extension is granted. But he opposes the application for two reasons. First, he says that there has not been any acceptable explanation for the delay. I reject that submission. In my view, the contents of the applicant’s affidavit provide an acceptable explanation. The Minister has criticised the affidavit, but in my view one needs to assess it realistically in the context of a litigant in person with language difficulties. Second, the Minister submits that the proposed appeal has little or no prospects of success, and that accordingly the extension is futile and should be refused. I agree.

20    Proposed ground 1 is not a ground of appeal. It is an assertion that the proceedings below involved a question of law.

21    Proposed ground 2 merely asserts that there is a jurisdictional error. It is generic and unparticularised. It is not incumbent upon me to transform such a generic ground into one capable of being particularised so as to identify a specific error. The present application has been on foot since November 2016. The applicant has had ample opportunity to provide particulars in advance of the hearing, but he has not done so.

22    I have reviewed both the Tribunal’s reasons and the primary judge’s consideration thereof. I am unable to detect any error in his Honour’s analysis thereof.

23    Further, the disposition of the present application, as I say, was postponed until after the High Court’s disposition of SZTAL. Having reviewed SZTAL, in my view nothing therein assists the applicant to establish any jurisdictional error on the part of the Tribunal.

24    This afternoon the applicant raised with me the suggestion that his submissions or other matters that he wanted to put before the Tribunal had not been properly considered. I must say, though, that on the material, I do not see there to be much substance in this complaint.

25    Accordingly, the application for an extension of time will be refused with costs.

Associate:

Dated:    2 May 2018