FEDERAL COURT OF AUSTRALIA

CVE16 v Minister for Home Affairs [2019] FCA 175

ORDERS

THE COURT ORDERS THAT:

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

2.    The applicant pay the first respondent’s costs, fixed in the lump sum of $2,500.

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

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Revised)

MORTIMER J:

1    The applicant seeks an extension of time pursuant to r 36.05(1) of the Federal Court Rules 2011 (Cth) in which to file a notice of appeal from the orders made by the Federal Circuit Court on 7 September 2018; see CVE16 v Minister for Immigration & Anor [2018] FCCA 2628. The applicant requires an enlargement of time of 25 days. His application is opposed by the Minister.

2    The principles applicable to the Court’s exercise of discretion to grant an extension of time are well-established. I referred to them in MZAPB v Minister for Immigration & Border Protection [2015] FCA 1391, and I adopt the same approach on this application. I note an appeal from the orders in MZAPB was dismissed by the Full Court.

3    In the present case, although the Minister submits that a period of 25 days is not insignificant, I do not consider that period to be of such duration that it should weigh heavily against the grant of an extension of time if the application otherwise has merit. Properly, the Minister does not submit there is any particular prejudice to him in granting this applicant an extension of time. As the Minister submits, there is no evidence before the Court beyond the evidence of the applicant himself about why he was late in filing his application.

4    In his affidavit in support of the application the applicant set out the following reasons:

3.    I was very disappointed for the order as I have done all the necessary things to get a fair order and was very upset and suffered mental depression due to my bad situation.

4.    I was physically also sick and could not attend to day to day work.

5.    I was taking herbal treatments and medicines.

6.    The above reasons delayed my application to Federal Court.

7.    The above statements are true based on my own knowledge and true to the best of my knowledge, information and belief based on my inquiries.

5    I asked the applicant at the hearing if there was any other reason or anything additional he wished to say about the delay in filing the documents. He said he had dizziness and could not leave the house, and after he got better he met a lawyer and got the documents prepared and filed. As I read the applicant’s evidence in his affidavit and in what he told the Court at the hearing, it is difficult to see that his ill health covered the entire time from the Federal Circuit Court decision to the time he filed the documents in this Court. However, even if I give the applicant the benefit of the doubt on the issue of his ill health, there are other factors to consider.

6    The applicant told the Court a lawyer helped him to compile the documents filed in this Court. Having observed the applicant at the hearing, I accept he was probably not able to prepare those documents himself. As the Minister submits, the application is incomplete in that there is no draft notice of appeal attached to the application. It appears the lawyer assisting the applicant overlooked the need to prepare such a document. I asked the applicant at the hearing why he did not file a notice of appeal and whether he knew he should have. He told the Court he did not know about that document. I accept what he said to the Court.

7    Since the applicant is a self-represented asylum seeker and from a non-English speaking background, in my opinion incapable of compiling such a document himself, I consider it is appropriate for the Court to proceed on the basis that if an extension of time were otherwise appropriate, the applicant would pursue on appeal the two grounds of review he pursued before the Federal Circuit Court. That is the way I have approached consideration of this extension of time application. As I noted in MZAPB, and as many other authorities recognise, when the Court is considering what is in the interests of the administration of justice in exercising this discretion, the prospects of success for the appeal are generally the most significant factor.

8    The assessment of prospects of the appeal is rather more difficult without a notice of appeal, but that is not fatal to granting an extension of time. To see if there were any other possible grounds at the hearing of the application, I asked the applicant about what his grounds of appeal would be. His response was to the effect that between 1983 and 2000 he had lost everything in Sri Lanka, his property and his shop, and that the Immigration Assessment Authority and the Federal Circuit Court had said this was not sufficient. This did not add anything that could be said to be a further legal argument, which is understandable, given the applicant’s circumstances, and no criticism can be made of him.

9    The two grounds of review before the Federal Circuit Court are set out in [2] of the Federal Circuit Court’s decision:

The application was filed by the Applicant a considerable period of time ago now, namely on 29 September 2016. There are two grounds of the application, and they are as follows:-

“1. The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend to him a real opportunity to reply to adverse information.

2. The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant’s credibility was an important factor in the Second Respondent’s decision that he was not a refugee, and an oral interview can give an insight into a person’s credibility that is otherwise unavailable. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell in to error/denied the Applicant procedural fairness.”

10    The applicant did not file any submissions in the Federal Circuit Court, but he did attend the hearing, and he made oral submissions to the Federal Circuit Court in support of his judicial review application. I asked the applicant at the hearing whether he also had some help from a lawyer in drafting the documents before the Federal Circuit Court, and he said the same lawyer helped him in the Federal Circuit Court case as helped him in this case.

11    The Federal Circuit Court described the applicant’s oral submissions at [22] and [23] of its reasons:

In oral submissions this day, the Applicant was unable to elaborate upon his grounds of judicial review by any particularisation of them. Each of the Applicant’s two grounds are, in essence, concerned with alleged failures by the Authority to afford to the Applicant procedural fairness.

Rather, the Applicant’s oral submissions were addressed to re-agitate factual matters determined by the Authority and included a statement that he is frightened to return to Sri Lanka. The Applicant claimed that the Authority had not considered everything he had submitted, that the Authority did not give him a visa, and further, that he could not go back to live in Sri Lanka.

12    The difference between the legal language in the documents filed by the applicant and what the applicant said to the Federal Circuit Court at the hearing is explained by what the applicant has told this Court about the assistance he received from a lawyer.

13    In a full and careful decision, the Federal Circuit Court set out the background of the applicant, his arrival in Australia and his claims for protection. It is not necessary to set those out again.

14    The applicant’s claims fell into two broad categories: claims based on events he had experienced in Sri Lanka before he fled, relying on the convention grounds of race or ethnicity, the applicant being Tamil, and political opinion, the applicant claiming he would be imputed with being connected to the LTTE, and, second, claims about the way he would be treated if he were to be returned to Sri Lanka and subjected to scrutiny by the Sri Lankan authorities. This second category of claims was also based on his Tamil ethnicity and the likelihood of him being imputed with a pro-LTTE or anti-government opinion on the basis of his ethnicity.

15    As the Federal Circuit Court noted, the Immigration Assessment Authority accepted the substance of the applicant’s account about what had happened to him and to his family in the past, including the destruction of the applicant’s father’s shop and the discrimination against Tamil shop owners not being able to re-establish their businesses. At [14]–[16] the Federal Circuit Court described why the Authority had determined that the applicant’s fears based on what had happened to him in the past were not well-founded, and at paragraphs [17]-[20] the Federal Circuit Court described why the Authority had found the applicant’s fears of persecution based on what might happen to him on return to Sri Lanka were also not well-founded or did not rise to the level of persecution or serious harm.

16    In my opinion, the Federal Circuit Court accurately described the Authority’s findings in those paragraphs. Correctly, the Federal Circuit Court noted that both the applicant’s grounds for judicial review concerned a denial of procedural fairness. Having set out the particular provisions which govern the content of the Authority’s procedural fairness obligations, the Federal Circuit Court focused on the new information provisions in ss 473DB, 473DC, 473DD and 473DE of the Migration Act 1958 (Cth). The Federal Circuit Court noted at [30] the “legislative imperative” that the review is to be undertaken without interviewing an applicant unless the conditions in Pt 7AA required otherwise.

17    In the applicant’s circumstances, the only new information which was considered by the Authority was country information identified on the applicant’s behalf by his representative in submissions to the Authority. The Authority determined that this was information published less than a month prior to the delegate’s decision, and the Authority was satisfied it could not have been provided to the Minister before the decision was made. The new country information consisted of updates to reports, either sighted by the delegate or the applicant’s representative. In those circumstances the Authority was satisfied there were exceptional circumstances to justify considering the new information.

18    As the Federal Circuit Court found, there was nothing prejudicial to the applicant and the Authority taking this course, nor did it involve any denial of procedural fairness to the applicant. If anything, quite the contrary, since the material had been submitted by his representatives. The Federal Circuit Court noted two other matters about the applicant’s grounds which were relevant to its dismissal of his application. The first was that the reasons of the Authority disclosed the Authority had no difficulty with the applicant’s credibility and did not rely on adverse credibility findings to reject his application. In that sense, the applicant’s claim that the Authority’s refusal to schedule an oral interview denied him procedural fairness could not be sustained. In the context of this particular Authority decision and the contentions made by the applicant, there is no error in the approach taken by the Federal Circuit Court.

19    The second matter noted by the Federal Circuit Court was the applicant’s argument that the Authority failed to “sufficiently raise critical matters” with him or “extend to him a real opportunity to reply to adverse information”. The Federal Circuit Court noted these are contentions apparently drawn from provisions such as s 425(1) of the Migration Act, which provides:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

20    The Federal Circuit Court found at [29] that these kinds of obligations were obligations that could not be said to apply to the Authority, given the very different legislative scheme governing its decision-making. This finding was made in a somewhat absolute way by the Federal Circuit Court. It is not necessary, in my opinion, for the Court to decide on this application whether the approach of the Federal Circuit Court at [29] is correct. I do not consider the High Court decision in Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor [2018] HCA 16 determines this issue. Counsel for the Minister accepted this.

21    Whether or not the kind of formulation put forward by the Federal Circuit Court is appropriate to the Authority, in the particular circumstances in the applicant’s review before the Authority, I accept the Minister’s submission that there was nothing requiring the Authority to depart from what the High Court in Plaintiff M174 described as the “primary rule” that the review be undertaken without interviewing an applicant. The Federal Circuit Court was correct to find that to be the case.

22    For these reasons, and having given the applicant an opportunity to identify to this Court any other basis on which he contends the Authority’s decision was erroneous, I am not satisfied that the proposed appeal has any arguable prospect of success. Accordingly, it would not be in the interests of the administration of justice to grant an extension of time to the applicant. The application for an extension of time will be refused.

23    There will be an order for costs in favour of the Minister in a lump sum. In support of his claim for costs, the Minister relied on an affidavit of Ms Georgina Long, affirmed 11 February 2019. The amount claimed by the Minister was $6,934.60. I have read Ms Long’s affidavit and asked counsel for the Minister a number of questions about its contents, and how the fees were calculated. Counsel fairly accepted that, on the evidence, what had been done in this matter in substance consisted of the preparation of a set of written submissions; a court book consisting of three documents, (the Authority’s decision, the Federal Circuit Court orders and Federal Circuit Court reasons), and the costs affidavit itself. There was also the appearance at the hearing.

24    The applicant has not filed any documents, and the Minister has not incurred any costs reviewing documents or responding to them. This was, I consider, a straightforward extension of time application. I consider the amount sought by the Minister is excessive. There will be a costs order in the Minister’s favour in the sum of $2,500.

Associate:

Dated:    20 February 2019