FEDERAL COURT OF AUSTRALIA

APC16 v Minister for Immigration and Border Protection [2019] FCA 847

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time and leave to appeal is dismissed.

2.    The Applicant pay the First Respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction and summary

1    This is an application for an extension of time and leave to appeal from a decision of the Federal Circuit Court (Circuit Court) to dismiss an application by the applicant to reinstate a proceeding in that court. The Circuit Court had previously dismissed the applicant's application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) due to the applicant's failure to attend the hearing of that application. The Tribunal had affirmed a decision of the first respondent (Minister), by his delegate, not to grant the applicant a protection visa (Visa).

2    For the reasons below, the application for an extension of time to appeal is dismissed. The applicant did not provide an adequate explanation to explain the 73 day delay in filing his appeal to this Court. Moreover, even if an extension of time had been granted, I would have refused leave to appeal the decision of the Circuit Court. The decision of the Circuit Court is not attended by sufficient doubt to warrant its reconsideration by this Court.

Background

3    The applicant is a citizen of Sri Lanka. He arrived in Australia on 2 July 2012 as an unauthorised maritime arrival.

4    On 23 November 2012, the applicant applied for the Visa.

5    On 6 May 2014, a delegate of the Minister refused to grant the Visa.

6    On 5 June 2014, the applicant applied to the Tribunal for merits review of the delegate's decision. On 19 February 2016, the applicant attended a hearing of the Tribunal with the assistance of his representative, a registered migration agent, and an interpreter.

7    Taken together, in his Visa application and in the course of the Tribunal's review, the applicant claimed that he had a well-founded fear of persecution if returned to Sri Lanka because of his:

(a)    imputed political opinion, on the basis that:

(i)    he was involved in political protests against the Government in relation to the increase in kerosene prices in February 2012;

(ii)    following these protests, members of the media returned to his village in about April 2012, and he was interviewed by a journalist;

(iii)    on the evening of the interview, there were unidentified men making enquiries in Sinhalese about someone with the applicant's name;

(iv)    following those enquiries, the applicant went into hiding at his Aunt's house, during which time he was advised by his wife that unidentified men had approached her looking for him; and

(v)    he feared that he will be detained and interrogated, tortured, abused and/or killed by the authorities;

(b)    asserted Tamil ethnicity; and

(c)    membership of a particular social group, being failed Tamil asylum seekers. The applicant claimed that failed Tamil asylum seekers are treated as former members of the Liberation Tigers of Tamil Eelam and are detained and interrogated.

The Tribunal’s decision

8    On 26 February 2016, the Tribunal affirmed the delegate's decision to not grant the applicant a Visa. In its reasons for reaching that decision (AAT Reasons), the Tribunal:

(a)    accepted that protests occurred in Sri Lanka in February 2012 and that the applicant attended at least one day of the protests: AAT Reasons at [15]-[18];

(b)    did not accept that the applicant was interviewed by anyone after the death of a protester or that subsequent enquiries were made about him from unidentified people: AAT Reasons at [19]-[26];

(c)    found that the applicant was not of any interest to the authorities as a result of either his participation in the protest or because he allegedly gave an interview after the protests: AAT Reasons at [26];

(d)    found that there was no real chance that the applicant will face serious harm from authorities for reason of an imputed political opinion, or for any other reason, because the Tribunal did not accept that events that would lead to any potential harm actually occurred: AAT Reasons at [26];

(e)    did not accept that the applicant was of Tamil ethnicity, and did not accept that he will face a real chance of persecution as a perceived Tamil. The Tribunal rejected this claim on the basis that the applicant had stated, in his application for the Visa and his entry interview, that he speaks Sinhalese and his ethnicity is Sinhalese: AAT Reasons at [27]-[29];

(f)    did not accept that the applicant belongs to a particular social group of failed Tamil asylum seekers or that he would be perceived as such by authorities upon return, predominately because the Tribunal did not accept that the applicant was in fact Tamil: AAT Reasons at [30]-[36];

(g)    found that the applicant did not engage Australia's complementary protection obligations: AAT Reasons at [40]-[44]; and

(h)    was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under either ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth): AAT Reasons at [45]-[48].

The Federal Circuit Court’s decision

9    On 21 March 2016, the applicant applied to the Circuit Court for judicial review of the Tribunal's decision on the grounds that:

(a)    the Tribunal did not afford him procedural fairness; and

(b)    the Tribunal applied the wrong legal test.

10    On 2 August 2016, the Circuit Court set the matter down for final hearing on a date to be advised. On 14 October 2016, the Circuit Court sent the applicant a notice of listing stating the final hearing would take place on 4 May 2018 (judicial review hearing). The applicant did not attend the judicial review hearing, and the Circuit Court dismissed his application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

11    On 31 August 2018, the applicant filed an application in which he effectively sought to have his proceeding reinstated. The hearing of that application took place on 24 September 2018, after which the Circuit Court delivered an ex tempore judgment: APC16 v Minister for Immigration & Anor [2018] FCCA 3934. The Court found (at [20]) that:

(a)    the applicant had not provided an adequate explanation for his non-attendance at the judicial review hearing; and

(b)    it was “unable to discern anything [from the AAT Reasons] that could arguably amount to a jurisdictional error”.

12    The Circuit Court accordingly dismissed the application for reinstatement with costs.

Relevant principles

13    The applicant now seeks an extension of time and leave to appeal from the Circuit Court’s decision not to reinstate the proceedings in the Circuit Court. The applicant requires leave to appeal because the Circuit Court’s decision was interlocutory in nature: Baig v Minister for Immigration and Border Protection [2014] FCA 855 at [3]. The applicant also requires an extension of time because any application for leave to appeal should have been filed by 8 October 2018: r 35.13(a) of the Federal Court Rules 2011 (Cth). As the applicant’s application was filed on 20 December 2018, it is 73 days late.

14    The principles relevant to determining whether to grant an extension of time were recently stated by Anastassiou J in Singh v Minister for Immigration and Border Protection [2019] FCA 633 at [16]. The Court on such an application is required to consider:

(a)    the extent and explanation of the delay;

(b)    whether granting the extension would result in any undue prejudice to the respondent (although the mere absence of prejudice is not sufficient to justify an extension); and

(c)    the merits of the proposed appeal (or, in this case, the merits of the application for leave to appeal).

15    In respect of leave to appeal, the Court has a discretion whether or not to grant leave. Relevant factors to the exercise of that discretion are clearly identified in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9 to include:

(a)    whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the Court; and

(b)    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

16    The test is cumulative. It will not be satisfied unless the applicant makes out both limbs of the test: Rawson Finances Pty Limited v Commissioner of Taxation [2010] FCAFC 139; 81 ATR 36 at [5]; see also Sekigawa v Minister for Immigration and Border Protection [2016] FCA 127; 237 FCR 276 at [12]. The utility or otherwise of granting relief is also relevant to the exercise of the discretion, as is that an interlocutory decision had the practical effect of bringing an end to the proceedings before the Circuit Court: Singh v Minister for Immigration and Border Protection [2016] FCA 611; 240 FCR 1 at [27].

Applicants’ evidence and submissions

17    In his brief affidavit filed in support of this application for extension of time and leave to appeal from the decision of the Circuit Court, the applicant deposed that the following reasons caused his delay in filing his appeal to this Court:

5.    I have lack of English knowledge and understanding. Therefore, it took some time for me to file this application.

6.    Further, my mother back in Sri Lanka is very sick and I had to attend for her treatment arrangements.

18    The applicant also filed written submissions in support of his application. However, the submissions do not advance the arguments in support of this application. The submissions predominately summarise the factual matters relied upon by the applicant to support his protection claim. The submissions do not address the reasons for the applicant’s delay in filing an appeal in this Court nor any legal submissions as to why leave to appeal should be granted.

19    The applicant further addressed the Court at the hearing for this application with the aid of an interpreter. I asked the applicant various questions about the proceedings before the Tribunal and the Circuit Court, his appeal to this Court and his fears about returning to Sri Lanka.

20    In response to my questions, the applicant was unable to name anything wrong with the reasons of the Tribunal. He said that he had provided the Tribunal with “all the evidence” but did not know why the Tribunal reached its decision.

21    The applicant was also unable to point to any particular error made by the Circuit Court in dismissing his application for reinstatement. The applicant told me that the sole reason for failing to attend the judicial review hearing was that his “mother was sick”. He said that he was “very upset” and forgot that he had the hearing. This response is on its face similar to that provided in the applicant’s affidavit, although that evidence was provided in relation to the delay in filing an appeal to this Court, rather than his failure to attend the judicial review hearing.

22    Consistent with his affidavit, the applicant also told me at the hearing that the reason for the delay in lodging an appeal to this Court was his lack of English knowledge. He said that he “had to have assistance on that” but was unable to point to any specific steps that he took to obtain assistance with the lodging of an appeal.

23    The applicant further explained that, as a Christian, he would face troubles if he returned to Sri Lanka, particularly after recent terrorist attacks. He also made reference to his three children being unprotected. He expressed that he was not requesting a permanent stay in Australia; instead he was only seeking a temporary stay before “the problems get better” in Sri Lanka.

Consideration

Merits of the application for a Visa

24    As outlined, the applicant’s affidavit evidence and submissions before this Court primarily centred on the factual matters relevant to the decision of the Minister’s delegate, and then the Tribunal, whether or not to grant the applicant a Visa. In doing so, the applicant sought to re-argue the merits of his case before this Court. But this Court has no jurisdiction to reconsider the merits of the Tribunal’s decision: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36. In other words, the role of this Court is not to determine whether the applicant should obtain a Visa, even for a short period. Upon this application, the role of this Court is limited to determining whether the applicant should receive an extension of time and leave to appeal the Circuit Court’s decision not to reinstatement his judicial review application in that court.

Extension of time

25    The Minister submitted that the delay of 73 days is significant but concedes that there is no irremediable prejudice to him by reason of the length of delay alone. However, even in the absence of prejudice to the Minister, my view is that the applicant has not provided the Court with any adequate explanation for the significant delay in filing the appeal to this Court to justify an extension of time.

26    The applicant did not adequately explain, either in his affidavit or at the hearing, the steps taken by him to file the appeal, and he did not explain to the Court whether he attempted to obtain legal assistance or assistance from someone who spoke his language and who could assist him filing the application. The affidavit is devoid of any explanation for delay save for lack of English knowledge and understanding.

27    The applicant also deposes to his mother back in Sri Lanka being very sick and having to attend for her treatment arrangements. However, the applicant provides no explanation as to how this factor impacted upon his ability to file an application within time. Nor has the applicant sought to explain to the Court his involvement with his mother’s medical treatment.

28    In addition to these matters, it is well established that an extension of time, even for a short period, may be refused if the appeal has no prospect of success. That principle applies equally to an application for leave to appeal: Singh v Minister for Immigration and Border Protection [2019] FCA 633 at [19]; FTY17 v Minister for Immigration and Border Protection [2019] FCA 682 at [25]-[26]. In this case, it is the applicant’s prospects of success in his application for leave to appeal to this Court that is relevant. For the same reasons explained below, there is insufficient merit in the application for leave to appeal.

Leave to appeal

29    The decision in respect of which the applicant seeks leave to appeal is the decision of the Circuit Court not to reinstate the judicial review proceedings in that court. As outlined above at [11], the Circuit Court reached that conclusion on the basis that the applicant had not provided an adequate explanation for his non-attendance at the judicial review hearing, and that, in any event, no jurisdictional error on the part of the Tribunal could be discerned from its reasons.

30    For the reasons stated below, I am of the opinion that the decision of the Circuit Court discloses no appealable error.

31    First, there is nothing in the reasons of the Circuit Court nor in the evidence and submissions provided to this Court that supplies an adequate reason for the applicant failing to attend the judicial review hearing. In this regard, it should be noted that the applicant’s explanation at the hearing in this Court for why he failed to attend the judicial review hearing—that his mother was sick—was inconsistent with the explanation that he had provided to the Circuit Court. The reasons of the Circuit Court express (at [4]-[6]) that the applicant told that court that “he did not attend the hearing on 4 May 2018 [i.e. the judicial review hearing] because he thought the final hearing was in August 2018”. Those reasons also record that the applicant told the Circuit Court that he had provided that court with a medical certificate to say he could not attend the judicial review hearing (which the Circuit Court nor the Minister had record of). But there was no mention of a medical certificate at the hearing in this Court.

32    Second, having read the AAT Reasons, I agree with the Circuit Court’s analysis (at [7]-[20] of its reasons) that there is no aspect of the Tribunal’s decision that could amount to jurisdictional error. In particular, there is insufficient merit in the applicant’s claims that the Tribunal did not afford him procedural fairness or otherwise apply the wrong legal test.

33    As a result, I agree with the conclusion of the Circuit Court (at [20] of its reasons) that “this is not an appropriate case for reinstatement”. It follows that the Circuit Court’s decision is not attended by sufficient doubt to warrant its reconsideration by this Court. Leave to appeal is accordingly refused.

Conclusion and orders

34    For these reasons, the application for an extension of time and for leave to appeal is dismissed.

35    There is no apparent reason why costs should not follow the event. I will therefore also make an order that the applicant pay the Minister’s costs of and incidental to the application.

Associate:

Dated:        6 June 2019