FEDERAL COURT OF AUSTRALIA

DZX16 v Minister for Immigration and Border Protection [2018] FCA 850

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to seek leave to appeal dated 2 March 2018 be refused.

2.    The applicant pay the first respondent’s costs of the aforesaid application and the costs of the application for an extension of time within which to appeal dated 19 October 2017.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an application for an extension of time and for leave to appeal from orders made by the Federal Circuit Court of Australia on 26 September 2017. On that day, the Federal Circuit Court made an order that the applicant’s application for an adjournment of the hearing of her application for judicial review be dismissed. The Court also made an order that the applicant’s application for judicial review dated 20 December 2016 be dismissed. The application for an adjournment was made by the applicant by way of what is known in the Federal Circuit Court as an Application in a Case which had been filed the day before the date fixed for the hearing.

2    The applicant and other members of her family arrived in Australia from Papua New Guinea as visitors on 14 June 2013. They were attending a family event in Australia. In September 2013, the applicant and members of her family lodged Protection visa applications. The Federal Circuit Court judge (the primary judge) said that the claim for protection “really arises more from events involving the grandmother, which have then enveloped the rest of her family” (DXZ16 & Ors v Minister for Immigration & Anor [2017] FCCA 2425 at [4]). The applicant in this proceeding is the grandmother referred to in that passage. I note that the correct pseudonym for the applicant is DZX16, but from time to time, documents in both this Court and the Federal Circuit Court have referred to her as DXZ16.

3    The respective applications for Protection visas were refused by a delegate of the Minister and the applicant and members of her family sought a review by the Refugee Review Tribunal (now the Administrative Appeals Tribunal). On 23 January 2015, the Tribunal handed down its decision to affirm the decision not to grant the Protection visas. Under s 477(1) of the Migration Act 1958 (Cth) (the Act), the applicant and members of her family had 35 days within which to bring an application for judicial review in the Federal Circuit Court. The applicant did not bring her application for judicial review in the Federal Circuit Court until 20 December 2016. The primary judge noted that the applicant’s application was 666 days out of time. Other members of the applicant’s family did not bring their respective applications for judicial review until 23 December 2016. The applicant’s application for judicial review contained an application for an extension of time.

The decision of the Federal Circuit Court

4    The Federal Circuit Court dealt with four applications for judicial review together. File BRG 1179/2016 was the application for judicial review brought by the applicant. File BRG 1180/2016 was an application for judicial review brought by a grandson of the applicant. File BRG 1208/2016 was an application for judicial review brought by another grandson of the applicant. The father of these two grandsons was a Mr M whom the primary judge noted had not made any application. File BRG 1209/2016 was an application for judicial review by ECJ16 and five of his family. ECJ16 is the applicant’s son.

5    There was another applicant for judicial review (EXB16) who was a granddaughter of the applicant. She claimed that if she returned to Papua New Guinea she would be the subject of harassment and sexual violence. Her application took a different course and was not the subject of the primary judge’s reasons.

6    The applicant was a 66 year old female at the time of the hearing before the Tribunal and she is a national of Papua New Guinea. The primary judge described the applicant’s claims for protection as follows (at [5]-[7]):

In short compass, the claims are that the grandmother was married to Mr J. Mr J, it is claimed, was killed in a road accident. The family of Mr J perceive that the grandmother, using sorcery, caused that car accident, and therefore they, to exact revenge, have wanted to harm all members of the grandmother’s family.

The second claim relates to Mr S. Mr S is the son of the grandmother’s cousin. It is claimed that Mr S’s family perceived that the grandmother killed Mr S using sorcery, and, to exact revenge, Mr S’s family want to harm all members of the grandmother’s family.

The third claim is for clan violence, saying that since 2011 there has been clan violence occurring in the grandmother’s ancestral village, and the Applicants, as members of one clan, feel that they will be attacked by another clan if they are returned to Papua New Guinea. With respect to EBX16, he noted that she claimed that if she returned to Papua New Guinea she would be the subject of sexual harassment or sexual violence. The primary judge noted that this aspect of her claim was quite separate and quite distinguishable from the rest of the claim “that really relates to being an extended member of the grandmother’s family”.

7    The primary judge said that the applicant’s application first came before him on a date in May 2017 and that on that occasion he looked at the applicant’s application and gathered the other matters, including the application by EBX16, and ordered that all matters come before him on 5 June 2017.

8    All of the applicants in the various judicial review proceedings appeared before the primary judge on 5 June 2017. The primary judge was informed that a Mr Julian Gormly, counsel practising in Sydney, was looking into the matters involving the applicants, although at that stage it was uncertain whether Mr Gormly would be appearing for the applicants. The primary judge then fixed a timetable for the production of a court book, the filing and serving of any amendment application by the applicants, the filing and serving by the first respondent of any affidavit upon which he intended to rely, and the filing and serving of written submissions by both parties. The primary judge also made an order setting the various applications down for hearing on 26 September 2017.

9    On 26 September 2017, the primary judge noted that no further material had been filed by the applicants. He noted that the Minister had filed the court book and his submissions. He noted that at 4.45 pm on the previous day, the applicant, “really on behalf of all of the Applicants” (at [19]) filed an application in a case seeking an adjournment for 56 days. The grounds of the application were set out in an affidavit sworn by the applicant. In paragraph 5, the applicant deposed to the following:

After the applications for review of the decisions by the Department of Immigration and Border Protection was refused by the RRT on 23 January 2015, a person named Ian Rintaul helped prepare our judicial review applications in the Federal Circuit Court, but advised us that myself and other applicants must try and obtain a pro bono lawyer who would be able to assist with the matter.

10    The primary judge noted that the applicant did not state when Mr Rintaul helped them prepare the judicial review applications or why it was that it took the amount of time it did (i.e., from 23 February 2015 until 20 December 2016) to lodge the applications with the Federal Circuit Court. He said that the applicant’s affidavit continued as follows (at [21]-[22]):

One of the factors that has been against us is that I have had little or no access to funds. I have had to try and rely on legal persons on a pro bono basis or an assisted basis. Another problem is that the better legal persons require funds upfront, and we have not been able to pay those fees. I and the other applicants have tried to access a lawyer, but have been unable to access a legal person who could assist in the matter.

…

We did have some assistance from a barrister in Sydney, Mr Julian Gormly, who was able to have the matter of my granddaughter, EBX16, remitted back to the AAT. The barrister in Sydney advised that he was unable to assist with the other family members’ judicial review applications, and we were left once more to try and figure it out on our own with absolutely no idea what we were doing.

11    The primary judge said that he would have some sympathy for the applicants for judicial review if that were truly the case. However, he noted that there was no evidence tendered to show what communications there were with Mr Gormly as to why it was he was able to look at one matter and not the others at all.

12    The primary judge said that Minister had filed an affidavit in response. Ms Caitlin McConnel deposed to having discussions with Mr Gormly at or about the time of the first directions hearing. Ms McConnel also said that on 1 September 2017, she was served with sealed documents in relation to EBX16 and that one of those documents was an outline of submissions settled by Mr Gormly. On the same day, Ms McConnel emailed the solicitors of EBX16 to inquire as to whether they were acting for any of the other applicants. She received an email from Mr Gormly on 1 September 2017 at 3.46 pm which read as follows:

Hi Caitlin, that last email was intended ultimately for you via Alison. I do not have instructions to act for any other member of the family either, though I will be appearing at the hearing of this matter which was in regard to EBX16.

13    The Minister considered Mr Gormly’s submissions in relation to the matter involving EBX16 and ultimately consented to an order (made by the primary judge) remitting that matter back to the Administrative Appeals Tribunal.

14    The primary judge concluded from Mr Gormly’s email that it was not a case of Mr Gormly saying that he was unable to assist with the other family members and leaving them “high and dry” (at [27]). Rather, it was a case of him not having instructions to act for the other members of the family.

15    The primary judge noted that the applicant’s present lawyer had been briefed the day prior to the hearing. He noted that there was “absolutely no explanation” of what had been done between 5 June 2017 and 26 September 2017 and, more importantly, no explanation as to what had been done from 1 September 2017 when there was “collateral” evidence that Mr Gormly did not have instructions to act for any other member of the family (at [29]). The primary judge also noted that the applicant deposed that she was “currently seeking legal assistance” (at [14]).

16    The primary judge noted that the applicant’s present lawyer applied for an adjournment on the basis that he needed to consider the matter. It seems that the applicant’s present lawyer had not been briefed in the matter generally, but had only been briefed on the application for an adjournment. The applicant’s present lawyer submitted that should the primary judge grant the adjournment, he would “crack the whip” to ensure that everything was done in a timely manner. The primary judge said that the problem with that submission was that the Court had already made orders to ensure that the applications were dealt with in a timely manner and there was no explanation as to why the matter was not ready to proceed on 26 September 2017. The matter had been set down nearly four months previously. There was no explanation as to why the applicant’s present lawyer had only been briefed the previous day.

17    The primary judge said that this was “symptomatic of this matter when one looks at the history” (at [32]). He said that there was no explanation as to why the application for judicial review was filed 666 days out of time.

18    The primary judge concluded as follows (at [33]-[35]):

The Court has a duty to ensure that its processes are not abused and that there is a proper running of justice, not just in this matter but in all matters, to ensure that the business of the Court is conducted expeditiously and properly.

Mr Markwell has not given me any indication at all as to what sort of matter would constitute a jurisdictional error other than he was very concerned that the grandmother would be harmed if she went back to Papua New Guinea because of these claims of sorcery.

That is a matter that was well and truly alive before the RRT, as it was then known. And the RRT did quite thoroughly go through those matters. Given the history of this matter and the lack of explanation as to why the matter is not ready to go today, I am of the view that the application for adjournment should be refused.

19    The primary judge went on to say that despite everything the applicants had said, he was not satisfied that the Tribunal had committed a jurisdictional error. He said that the Tribunal had considered the claims and all relevant information. There was no error in its conclusion. The primary judge refused the application to extend the time within which to bring the application for judicial review because there was no proper explanation for the delay and the application itself was doomed to fail.

The Application to this Court

20    Initially, the application to this Court was for an extension of time within which to appeal from the orders of the Federal Circuit Court. On the basis that that was the correct application, a twenty-one day time limit applies (Federal Court Rules 2011 (Cth) (the Rules) r 36.03) and the extension of time required is a period of approximately five days.

21    The applicant has changed her application so that it is now an application for an extension of time within which to seek leave to appeal. This change has come about in the following circumstances.

22    The first respondent filed and served an Objection to Competency wherein he contends that this Court has no jurisdiction to hear an appeal from a decision of the Federal Circuit Court not to extend time under s 477(2) of the Act (s 476A(3) of the Act). The applicant accepts that that is the case and now wishes to challenge the order whereby she was refused an adjournment on 26 September 2017. The first respondent did not contend that, as a matter of law, the applicant could not challenge that order and I will proceed on the basis that s 476A(3) does not preclude that course.

23    An order refusing an adjournment is an interlocutory order and leave to appeal is required (Federal Court of Australia Act 1976 (Cth)). An application for leave to appeal must be made within 14 days (r 35.13 of the Rules). In terms of the period of delay, I am prepared to treat the application for an extension of time within which to appeal as if it was the application for an extension of time within which to seek leave to appeal. The application for leave to appeal is out of time by approximately 12 days.

24    The factors relevant to whether an extension of time is granted are well-known. They include the length of the delay, the explanation for the delay, the merits of the substantive application, the prejudice to the respective parties should an extension of time be or not be granted, and public interests considerations if relevant (AZAEY v Minister for Immigration and Border Protection and Another [2015] FCAFC 193; (2015) 238 FCR 341). The decisive matter on this application is that, in my opinion, the application for leave will fail.

25    The first limb of the test for leave to appeal enunciated in Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397; (1991) 104 ALR 621 (Decor v Dart) is that there be sufficient doubt attending the primary judge’s decision to refuse an adjournment to warrant its being reconsidered by this Court.

26    In my opinion, the primary judge’s decision to refuse an adjournment is not attended with sufficient doubt to warrant its being reconsidered by this Court. The primary judge examined the circumstances surrounding the application for an adjournment. He examined the notice the applicant had of the hearing date and whether she had an adequate opportunity to be ready for the hearing. He was aware of the applicant’s personal circumstances and, indeed, he had addressed the applicant in court on 5 June 2017. He was satisfied that there was no explanation as to why the application for judicial review, including the application for an extension of time, was not ready to proceed on 26 September 2017. To my mind, that conclusion was inevitable, but at the very least, it was a conclusion reasonably open to him.

27    There is another important matter. The primary judge said that the applicant’s present legal practitioner had given him no indication “at all” as to what sort of matter would constitute a jurisdictional error other than he was very concerned that the applicant would be harmed if she went back to Papua New Guinea because of the claims of sorcery (at [34]). The application for judicial review identified the following legal errors:

1.    The RRT decision is affected by legal error.

2.    At para 24, the member failed to consider relevant information regarding pay back compensation.

3.    At para 30 – the member asked himself the wrong question in relation to the jurisdiction of the “village court”.

4.    At para 34 – the member did not properly consider relevant material in relation to the “court order” from the Port Moresby Court.

5.    I anticipate filing amended grounds following further advice from legal counsel.

28    The primary judge was entitled, if not bound, to take into account the extent to which, if at all, an adjournment would serve a useful purpose. Faced with the grounds for judicial review and the lack of the articulation of an arguable jurisdictional error by counsel, the primary judge was entitled to conclude that an adjournment was unlikely to serve a useful purpose.

29    I am unable to see any error in the primary judge’s decision to refuse an adjournment. In addition to the matters specific to this case, I note that courts are ordinarily very reluctant to interfere with a trial judge’s decision whether or not to grant an adjournment (Bloch v Bloch and Another [1981] HCA 56; (1981) 180 CLR 390 at 395-396 per Wilson J, with whom Gibbs CJ, Murphy, Aickin and Brennan JJ agreed).

30    There is, in fact, another reason to conclude that the grounds set out in the application for judicial review have no real merit. As will become clear when I consider the second limb in Decor v Dart, those matters are no longer pursued. A new ground is raised.

31    The second limb of the test in Decor v Dart is that the applicant will suffer substantial prejudice if leave is refused and supposing the decision to be wrong. Strictly, I do not need to consider this limb because failure with respect to the first limb means that leave should be refused. However, I will deal with the second limb for the sake of completeness.

32    On the assumption which I have made that the applicant can challenge the order refusing her application for an adjournment, the extent of any order she could obtain is an order remitting the application for judicial review, including the application for an extension of time, to the Federal Circuit Court for further consideration. In view of the extraordinary delay and the lack of an arguable case, it seems to me inevitable that the application for an extension of time would be refused. The draft Notice of Appeal suggests that the ground of challenge to the Tribunal’s decision which she now wishes to raise is that the Tribunal failed to consider a claim that she belongs to a particular social group, namely, a woman who has been accused of witchcraft and sorcery. As far as I can see, a claim of that more general nature was not a claim she advanced before the Tribunal. The claim she advanced before the Tribunal and which it considered was that she feared harm on this basis from two particular groups, namely, Mr J’s family and Mr S’s family. The Tribunal’s decision cannot be challenged on the basis that it did not consider a claim which was not advanced before it. I am not satisfied that the applicant would suffer substantial prejudice should leave to appeal be refused and supposing the decision to be wrong.

33    Although the extension of time within which to seek leave to appeal to this Court does not involve a substantial period of time, the application should be refused because the applicant does not have an arguable case that leave to appeal should be granted. I would add that, even if an extension of time was granted, I would refuse leave to appeal.

Conclusion

34    The application for an extension of time within which to appeal is refused.

Associate:

Dated:    7 June 2018