FEDERAL COURT OF AUSTRALIA

BAV16 v Minister for Home Affairs [2019] FCA 292

ORDERS

THE COURT ORDERS THAT:

1.    The order in paragraph 1 of the orders made on 9 November 2018 be set aside.

2.    The order in paragraph 2 of the orders made on 9 November 2018 be set aside.

3.    The originating application filed on 21 June 2018 is dismissed.

4.    Subject to the order in paragraph 5, the applicant is to pay the first respondent’s costs as agreed or assessed.

5.    In the event that an agreement (including as to payment by way of instalments) cannot be reached, the Registrar may vary the order in paragraph 4, including for the purpose of providing for the payment of costs by way of instalments.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The applicant is a citizen of Sri Lanka. On 6 June 2012, he lodged an application for a protection visa under the Migration Act 1958 (Cth). In support of that application, he claimed, among other things, to have a well-founded fear of persecution at the hands of the Sri Lankan authorities by reason of his Tamil ethnicity, the region in which he had resided and his religion. He claimed that he was a person who was imputed with the opinions of a sympathiser of the Liberation Tigers of Tamil Eelam.

2    A delegate of the then-named, Minister for Immigration and Border Protection refused to grant the applicant a protection visa. That decision was affirmed on review by the then-named the Refugee Review Tribunal (RRT). The Federal Circuit Court of Australia (FCCA) dismissed an application for judicial review of the RRT’s decision. The applicant then successfully appealed to this Court, the orders of the FCCA were set aside and the matter remitted to the RRT. On remittal, the delegate’s decision was again affirmed by the then-named Administrative Appeals Tribunal. The applicant again sought judicial review of the Tribunal’s decision in the FCCA. That application was dismissed on 18 May 2018: BAV16 v Minister for Immigration & Anor [2018] FCCA 1112.

3    On 21 June 2018, the applicant filed an application in this Court for an extension of time in which to appeal from the decision of the primary judge. That application was set down for hearing before me on 9 November 2018 at 2.15 pm. The applicant did not attend the hearing. Having satisfied myself that the applicant had been notified of the hearing date and the hearing time, I made an order dismissing the application pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). I made a consequential order as to costs.

4    Section 25(2B) relevantly provides:

(2B)    A single Judge (sitting in Chambers or in open court) or a Full Court may:

…

(bb)    make an order that an appeal to the Court be dismissed for:

…

(ii) failure of the appellant to attend a hearing relating to the appeal; or

(bc)    vary or set aside an order under paragraph (ab), (ba) or (bb); or  …

5    Section 25(2B)(bc), together with r 39.05 Federal Court Rules 2011 (Cth), confer on this Court the discretion to vary or set aside the order made on 9 November 2018.

6    The applicant filed an interlocutory application in the Court on 6 December 2018. I have treated it as an application under s 25(2B)(bc) to set aside my order dismissing his application and my consequential order as to costs.

7    On 15 February 2019 I allowed that application, set aside my previous orders and heard the parties on the substantive merits of the extension of time application. I made a further order dismissing the application for an extension of time and gave oral reasons for all of the orders made on that day. I now publish written reasons to the same effect.

8    The discretion under s 25(2B)(bc) is to be exercised judicially having regard to all of the circumstances and especially having regard to the purpose for which s 25(2B) is enacted. The power to dismiss an appeal or an application associated with an appeal may be exercised in circumstances where the reason for the non-attendance of a party is unknown at the time. Relevant to the exercise of the discretion to set aside such an order is the adequacy of any explanation given for the non-attendance at the original hearing and whether the applicant has a reasonably arguable case on the substantive application: AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110 at [28] – [29] (Tracey J); MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18] (North J); MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] (Ryan J); Harrison v Secretary, Department of Social Services [2018] FCA 110 at [25] (Flick J).

9    The Minister relies on an affidavit sworn by a solicitor who was in attendance at the Court on 9 November 2018. By reference to that affidavit, I find that the applicant did attend the Court on 9 November 2018, shortly after the Court had adjourned and that he then was informed that I had made an order dismissing his application.

10    In an affidavit affirmed on 6 December 2018, the applicant stated he did not attend the hearing because an illness had made him confused about the time that the hearing was set down to commence. He said he thought that the starting time was 2.45 pm rather than 2.15 pm. From the bar table, the applicant then asserted that he had suffered from a digestive condition which rendered him unable to attend Court. I permitted the Minister’s solicitor to cross-examine the applicant in relation to the explanations he had given. In oral evidence, the applicant repeated that he suffered from a medical condition on the day of the hearing which made him confused about the hearing start time. It was put to the applicant that he had received email correspondence on 2 November 2018 reminding him of the start time. The applicant said that due to his illness he was unable to see that email prior to the hearing.

11    Although I consider the applicant’s oral and affidavit evidence to be incongruous in part, it was not put directly to him in cross-examination that he did not in fact suffer an illness on the day of the hearing. The manner of cross-examination was such that the applicant was not given an opportunity to comment on any apparent inconsistency in his accounts, nor was it put to him that he had not given a truthful account.

12    Annexed to the interlocutory application is a certificate titled “Certificate for personal leave” signed by a pharmacist. It states that on 9 November 2018, the applicant “will be unfit to attend work”. The nature of the illness is not specified, nor does the pharmacist specify precisely how the illness in question rendered the applicant unable to attend Court, nor how the illness might have caused the applicant to become confused about a hearing start time. The certificate is not meaningful and should be given no weight: MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 at [2] (Pagone J); NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559.

13    The applicant has nonetheless given oral evidence on oath that he was suffering an illness that caused him to become confused and I accept his oral account. I weigh that circumstance in the balance in the exercise of my discretion.

14    Also relevant to the exercise of my discretion is the circumstance that the applicant did attend shortly after the hearing time. The evidence of the Minister’s solicitor states that the solicitor witnessed the applicant having a conversation with my Associate about the order that I had made. The Minister’s solicitor did not ask the Associate to contact me so as to have the hearing resumed and nor did my Associate contact me at the time for that purpose.

15    I take into account that the applicant is self-represented and that he is not proficient in the English language. It is reasonable to infer that he was in no position to comprehend that he might have made an immediate application to have my order set aside on 9 November 2018. Had that occurred, the hearing might well have been resumed and my order set aside without controversy on the day.

16    Also relevant to the exercise of my discretion are the prospects of the applicant succeeding on the application for an extension of time in which to appeal from the judgment of the primary judge.

17    The Court has a discretion to extend the timeframe in which a notice of appeal may be filed: r 36.05 of the Rules. Rule 36.05 requires “an exercise of discretion having regard to all relevant factors”: AHI15 v Minister for Immigration and Border Protection [2016] FCA 64 at [19] (Edelman J). Among the relevant factors are the length of the delay, the adequacy of any explanation given for the delay, the prejudice that might be suffered by the respondent if an extension of time were granted, the prejudice that may be suffered by the applicant if the extension were to be refused and, relatedly, the merits of the proposed appeal: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ) ; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 – 349 (Wilcox J). Where an adequate explanation is given for the delay and the respondent would suffer no prejudice by reason of the delay, an extension of time should ordinarily be granted, provided that the applicant can demonstrate that the grounds of appeal are at least arguable: MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478 (Tracey, Perry and Charlesworth JJ). These principles are not to be taken as exhaustive: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [36] (Edmonds, Griffiths and Pagone JJ), nor are they to be applied as if they were statutory preconditions to the grant of an extension of time.

18    I have had regard to the explanation that the applicant has given for his failure to commence his appeal on time. The effect of that explanation is that he was ignorant of the timeframe in which the appeal should be commenced and that he miscalculated the days. The Minister’s solicitor submits that ignorance of the timeframes in which an appeal must be commenced is not an adequate explanation. In my view, the position cannot be stated in such absolute terms, particularly in the case of a self-represented, non-English speaking litigant: see ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 at [25].

19    The delay in the present case is not long and the Minister does not suggest that any prejudice would be suffered should an extension of time be granted to commence an appeal.

20    On the application for an extension of time, I would proceed to consider the substantive underlying merits on the basis that there had been either an adequate explanation for the delay or that the reason for the late filing of the appeal was not due to contumelious disregard by the applicant of the timeframes in which an appeal should be commenced.

21    Having regard to all that I have said thus far, in my view it is appropriate to set aside the order that I made on 9 November 2018 and to proceed to consider whether or not an extension of time in which to appeal should be granted. It is in that context that I now turn to consider whether or not the applicant has raised an arguable case on the proposed appeal.

22    The application for an extension of time in which to appeal, on its face, contains some grounds that appear to be proposed grounds of appeal. Annexed to the application is a draft notice of appeal. That, too, contains proposed grounds of appeal. The applicant has also filed affidavits in this Court in which grounds of appeal or proposed grounds of appeal appear to be asserted.

23    For the most part, the grounds do not contain a precise allegation of appealable error on the part of the primary judge. Rather, the grounds are expressed in terms asserting error on the part of the Tribunal. I will proceed on the basis that the applicant seeks to assert that the Tribunal committed errors that ought have been detected by the primary judge. It is not at all apparent that the same arguments were advanced before the primary judge.

24    The difficulty for the applicant is that he would require leave of this Court to raise arguments before me that were not raised in the proceedings below. Ordinarily, on such an application, leave would only be granted if it was expedient in the interests of justice to do so: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; (2002) 190 ALR 543 at [18] (Hill, O’Loughlin and Tamberlin JJ); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ).

25    I do not consider that the applicant has sufficient prospects of succeeding on an application for leave to introduce new issues, principally because the asserted errors are not particularised. They are not expressed in terms that would allow the Court on appeal to understand the nature of the jurisdictional error that is being asserted.

26    It is conceivable that the applicant could, if given a further opportunity, draft a notice of appeal so as to allege appealable error on the part of the primary judge. I have accordingly given consideration to the reasons of the primary judge for dismissing the application for judicial review.

27    On his application for judicial review, the onus was on the applicant to establish that the decision of the Tribunal was affected by jurisdictional error : s 474 of the Act; Craig v South Australia (1995) 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ).

28    The arguments raised by the applicant in the proceedings below were expressed in terms of a failure by the Tribunal to give any or proper consideration to certain issues. The applicant also alleged that the Tribunal had denied him procedural fairness and thereby breached s 425 of the Act.

29    In support of his proposed appeal, the applicant made submissions to the effect that he did, in fact, have a well-founded fear of returning to Sri Lanka. He submitted that the events that he had relied upon before the Tribunal had escalated since the Tribunal had made its decision. Even if that be so, it would not demonstrate appealable error on the part of the primary judge. The task of the primary judge was to determine whether the Tribunal had committed jurisdictional error, having regard to the information before it at that time. If events in Sri Lanka have since escalated such as to give rise to an escalated risk of harm, there may well be other remedies available to the applicant under the Act.

30    The primary judge said, at [85], that the grounds set out in the application for review of the Tribunal’s decision were, in essence, no more than an invitation to review the Tribunal’s decision on its merits. His Honour said (at [88]) that most of the applicant’s submissions and grounds of review seemed to be fuelled by emphatic disagreement with the outcome: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.

31    The reasons of the primary judge otherwise set out at some length all of the claims that the applicant had made before the Tribunal and concluded that the Tribunal had considered and disposed of the issues. The applicant did not make any submissions to the effect that the analysis made by the primary judge was incorrect. Rather, the applicant made submissions to the effect that this Court should grant him a protection visa, which it does not have the power to do, even if circumstances in Sri Lanka have changed.

32    In the circumstances, I am not satisfied that the applicant has reasonable prospects of succeeding on an appeal and I would therefore not grant him an extension of time. The application for an extension of time should be dismissed.

Associate:

Dated:    15 February 2019