FEDERAL COURT OF AUSTRALIA

AIC16 v Minister for Immigration and Border Protection [2018] FCA 1178

ORDERS

THE COURT ORDERS THAT:

1.    The time in which the applicant may file a notice of appeal is extended until 5 April 2018.

2.    The draft notice of appeal filed on 5 April 2018 will stand as the notice of appeal in this proceeding.

3.    The appellant has leave to file and serve an amended notice of appeal, on or before 4 pm on 21 September 2018, or such later time as the Court may allow.

4.    The appeal be listed before Mortimer J during the November 2018 Full Court sitting period, on a date to be fixed.

5.    The appellant be referred for pro bono legal assistance pursuant to r 4.12 of the Federal Court Rules 2011 (Cth).

6.    The first respondent’s costs of the extension of time application be reserved.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The applicant was accepted by the Administrative Appeals Tribunal to be a citizen of Sri Lanka, of Tamil ethnicity and an adherent to the Hindu religion. He arrived in Australia in May 2012 by boat and claimed protection. His protection visa application was lodged shortly after his arrival, on 31 August 2012. The visa was refused by a delegate of the Minister and the applicant applied for review to the Tribunal, which affirmed the delegate’s decision in June 2013.

2    It appears that it has taken almost five years between the Tribunal’s initial decision and the decision of the Federal Circuit Court in March 2018 for the applicant’s claims of judicial review to be finally determined, at least at first instance. That is in part because the first decision of the Tribunal was subject to a successful judicial review application and the matter was remitted to the Tribunal in March 2014. The applicant then experienced further delay because although a Tribunal hearing was conducted in August 2014, the Tribunal member who conducted that hearing apparently “became unavailable” and the Tribunal needed to be reconstituted.

3    Quite properly, the newly constituted Tribunal convened a further hearing, but this did not occur until 17 December 2015, almost 18 months after the first hearing. The second Tribunal’s decision was made on 4 February 2016, and it affirmed the decision not to grant the applicant a protection visa. The judicial review application made by the applicant was filed on 15 February 2016, but was not determined by the Federal Circuit Court until more than two years later: see AIC16 v Minister for Immigration & Anor [2018] FCCA 885.

4    The time for an appeal from the orders of the Federal Circuit Court made on 14 March 2018 expired on 4 April 2018. The applicant lodged his application for an extension of time in which to appeal from the orders of the Federal Circuit Court on 5 April 2018. The extension of time is opposed by the Minister.

5    In the context of delays of up to five years through no fault whatsoever of the applicant it is somewhat ironic, to say the least, that the Minister opposes an extension of time of one day in relation to the applicant’s appeal. However, counsel for the Minister properly conceded the short delay was a matter in favour of the applicant, and the substantive basis for the Minister’s opposition was that the appeal had no real prospects of success.

The application for an extension of time and the hearing in this Court

6    The applicant is unrepresented in this Court, as he was before the Federal Circuit Court. He speaks some English, although he had the assistance of an interpreter at the hearing before me.

7    In his affidavit in support of the application for an extension of time, he says:

I have tried to get legal assistant help I had several appointments but unfortunately the all said cannot help then I have decided to apply my self that a reason.

8    It appears that the proposed notice of appeal is one that has been prepared by someone other than the applicant, when it is compared to the applicant’s affidavit. The grounds of appeal in the proposed notice are:

1.    The Tribunal accepted that the Applicant would be detained for a brief period but did not assess whether that such detention would result in persecution. The Tribunal clearly not assessed this integer claim and fell into jurisdictional error.

2.    The learned judge erred by holding with the Tribunal that the appellant’s claim was cumulatively assessed but it was not.

3.    The Tribunal erred jurisdictionally by breaching section 424A of the Act. It has not given to the appellant clean particulars pursuant to subsection (1) and acted in haste and refused the application. The Tribunal erred and misconstrued the obligation imposed on the Tribunal under the migration Act.

4.    The appellant reserved his right to amend the grounds of appeal when the reason for the learned judge’s decision come to hand.

9    Unsurprisingly, the applicant was not in a position to develop what was meant by any of those grounds to the Court.

10    I asked the applicant what he wished to say about the fact he was one day late. He responded that he had counted the days from the date he received the letter. I infer he thought he was within time when he attended the Registry to file his documents. That is an understandable mistake and does not show any intentional disregard for the time limits set.

11    I also asked the applicant whether he had anything to say about the Federal Circuit Court decision, and the decision of the Tribunal. His only response was that he thought his case was rejected because he did not have enough evidence, but his situation meant he could not get any more evidence.

12    The Minister submits that although the delay is short, the applicant’s explanation is inadequate, but more importantly “no useful result” could be obtained by the grant of leave to appeal because, the Minister submits, there is no basis on which this Court might interfere with the decision of the Federal Circuit Court or the Tribunal.

13    At the hearing of the application for extension of time and in the context of the applicant being unrepresented, I raised a number of matters with counsel for the Minister concerning the Tribunal’s decision. These included:

(a)    Whether the Tribunal, as ultimately constituted, relied on the hearing that had been conducted before the Tribunal as originally constituted, and then as initially constituted the second time. Counsel responded that this seemed to be the case from [4] of the Tribunal’s reasons which refers to s 19D(4) of the Administrative Appeals Tribunal Act 1975 (Cth). Counsel also referred to [29] of the reasons where the Tribunal appears to refer to a hearing before the Tribunal as previously constituted after remitter from the Federal Circuit Court.

(b)    Whether the inconsistencies in the applicant’s narrative about what happened to him in Sri Lanka, after he (as the Tribunal accepted) had a fight with an army officer, were material inconsistencies which entitled the Tribunal to reject the applicant’s evidence in the way that it did. Counsel responded that these inconsistencies were not so minor as to be unable to have a bearing on the Tribunal’s adverse assessment of the applicant’s credibility.

(c)    Whether the Tribunal, in making the finding it did at [46] of its reasons, took into account the applicant’s previous interactions with the army and how that might affect his treatment by police. Counsel responded that the Tribunal had made findings about the applicant’s profile, on the basis that only those with LTTE links were identified in the country information as at risk. Counsel submitted there was no need for any separate analysis about the risk posed by the applicant’s previous interactions with the army.

(d)    Whether, in making the finding it did at [49] of its reasons, the Tribunal took into account the applicant’s evidence, which it had appeared to accept, that he had little or no relationship with his mother or sister, having been raised by his grandfather and uncle, and on what material the Tribunal based its finding that all or any of them could “stand as guarantor” for the applicant. Counsel responded that there was no transcript of any of the three Tribunal hearings so it was not possible to make any submissions about whether there was evidence on which the Tribunal could base these findings.

(e)    What were the nature of the submissions made to the Tribunal, to which it refers at [52] of its reasons, about the weight that should be given to the country information assessments made by DFAT given that they were, the applicant’s previous adviser contended, driven in large part by the political imperative of increasing co-operation between the Australian Federal police and the Sri Lankan navy and the reduction in numbers of successful Sri Lankan asylum seekers in order to create a deterrent to boat journeys. Counsel responded that what appears in the Tribunal’s reasons, taking into account the material before the Federal Circuit Court from the three Tribunal hearings, suggests something more may have been said orally to the second Tribunal about this matter. Nevertheless, counsel submitted the Tribunal dealt adequately with the matter.

Resolution

14    In considering whether to extend time, the Court has a wide discretion, not expressly fettered in its terms in r 36.05 of the Federal Court Rules 2011 (Cth). At base, the Court will determine the appropriate exercise of discretion based on its view about what the interests of the administration of justice require, including, but not limited to doing justice between the particular parties.

15    As I noted in MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 at [12], the principles expressed in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 348-9 per Wilcox J have been identified as having equal application to r 36.05. In MZZGC at [13] I also emphasized the particular considerations relevant where an applicant is an applicant for a protection visa.

16    In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]-[63], although in relation to the Federal Circuit Court’s discretion to extend time under s 477(2) of the Act, I made the following observations, which I adopt in the present application:

As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]- [48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.

17    In DEP16 v Minister for Immigration and Border Protection (No 2) [2017] FCA 1528 at [14]-[17] Allsop CJ noted that the merits of the appeal are an especially significant factor. That with respect must be so, because the interests of the administration of justice will always rest to a considerable (but not entire) extent on what the correct orders on any appeal are likely to be. I say “not entirely” because fairness, and reasonable perceptions of fairness, in the administration of justice also has an important role to play.

18    In the context of the queries I had about the Tribunal’s reasons for its decision, I turn then to the consideration given by the Federal Circuit Court to the applicant’s judicial review application. The reasons given by the Federal Circuit Court are brief in compass, largely I apprehend because the applicant was unrepresented and unable to develop any substantial arguments. There is no basis to criticise the Federal Circuit Court for the way in which it expressed its reasons on judicial review. The Federal Circuit Court also indicated, quite properly, at [16] of its reasons for decision that it had read the Tribunal’s reasons and looked at the documents in the Court Book, and was unable to discern any jurisdictional error.

19    It may well turn out to be the case that there was no error in the Federal Circuit Court’s conclusion at [16] of its reasons. However, the applicant should be given the opportunity to test that conclusion on a full appeal, with legal representation if that can be secured for him.

20    The purpose of raising matters with counsel for the Minister was to identify no more than examples of matters which, were the applicant legally represented, might have been explored on judicial review. In the circumstances of the particular reasons for decision of the Tribunal, coupled with the fact that it appeared to rely on evidence given before the first Tribunal, and then evidence before the second Tribunal as initially constituted, together with the nature of the applicant’s claims and the way some of those claims were addressed by the Tribunal, I am not prepared to decide that the applicant has no arguable case for judicial review of the Tribunal’s decision.

21    In doing so, I am obviously focussing on whether there may be merit in a properly formulated judicial review application of the Tribunal’s decision, rather than on the formulation given by the applicant, as an unrepresented asylum seeker, whose level of English is represented in his affidavit as I have extracted it at [7] above, and who has clearly had assistance in some way but not to the extent of being able to develop any arguments arising from that assistance. In the circumstances of the present application, any other approach might be said to be a triumph of form over substance. The terms of the existing proposed notice of appeal are in any event formulaic, and, based on my own experience sitting in this jurisdiction, grounds with this wording or similar wording appear in many notices of appeal submitted by unrepresented individuals.

22    That being the case, the approach I have taken is to examine the Tribunal’s decision at a reasonably impressionistic level, including by reference to the questions I asked the Minister’s counsel, for the purposes of determining whether I was confident that the applicant could not be said to have any reasonable prospects of success on any appeal. I did so in the context of the delay being as short as it could be – one day – and the finding I have made that the applicant thought he was lodging within the specified time for an appeal. I am mindful of what is at stake for the applicant, and that he did not have the benefit of legal representation before the Federal Circuit Court either.

23    I consider the applicant should have access to legal assistance if it is possible to secure it for him, and should be given the opportunity to have arguments (if there are any) put before this Court on his behalf, methodically and properly, in circumstances where there is much at stake for him. Accordingly, and particularly in circumstances where the delay is of one day, and the applicant would otherwise have a right of appeal had he filed his papers a day earlier, I consider it is in the interests of the administration of justice that an extension of time be granted to him. I also take into account the fact that through no fault of his own, as he appears to have acted properly at every stage, it has taken more than five years for his claims of review (merits review and judicial review) to get to this point. In those circumstances, it would be ironic in the extreme if a delay of one day were to preclude him from a challenge to the lawfulness of the exercise of power that has such serious consequences for him.

24    However, recognising that ultimately the appeal may not succeed, and the Minister may wish to make a submission about appropriate costs orders on the extension of time, I will reserve the Minister’s costs of the extension of time application.

25    I propose to make a pro bono referral for the applicant at the same time as making the orders for the grant of an extension of time. The matter will then be listed in the usual course before me for the hearing of the appeal.

Associate:

Dated:    13 August 2018