FEDERAL COURT OF AUSTRALIA

BKX16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 991

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is amended to 'Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs'.

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

3.    The applicant must pay the first respondent's costs of the application, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an application for an extension of time and leave to appeal from a decision of the Federal Circuit Court of Australia. The applicant had applied to that court for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the first respondent (the Minister) refusing to grant a protection visa to the applicant. On 30 July 2018 the Federal Circuit Court dismissed that application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) because the applicant failed to appear at the hearing of the application. On 27 March 2019 the primary judge dismissed an application pursuant to r 16.05 of those rules to set aside the dismissal of the application for judicial review. It is the decision of 27 March from which the applicant now wishes to appeal.

The primary judge's decision

2    The application to the primary judge to set aside the dismissal of the Federal Circuit Court proceedings was itself filed approximately five months after that dismissal. It was based on an affidavit sworn by the applicant claiming that he had believed that the hearing at which he failed to appear had been 'fixed for August 2018'. In fact, the hearing had been originally listed for 20 August 2018, but the listing was changed to 30 July 2018. According to the affidavit, the reason the applicant did not receive notice of the changed hearing date was that he had moved from his address for service, which was in Victoria, to Western Australia, and had not notified the court of the change of address.

3    Before the primary judge, however, the applicant claimed that he had in fact attended the court in Melbourne on 20 August 2018. He also claimed that he had telephoned the court to advise of his change of address, but he was not able to give any details of when he made that call or to whom he spoke. That was in contrast to the evidence that had been provided in the affidavit in which he said 'I admit that I earred [sic] by not intimating my change of address'.

4    The primary judge reached the view that there was no reasonable explanation for the applicant's failure to attend on 30 July 2018. His Honour also found that the delay in making the application to set aside the dismissal orders had not been properly explained, particularly if one were to accept that the applicant had travelled from Western Australia to Melbourne on 20 August 2018 to go to court. There was no reference to that travel in the applicant's affidavit.

5    The Minister had conceded before his Honour that he would suffer no prejudice should the application be reinstated, but submitted that the mere absence of prejudice did not of itself justify the exercise of the discretion to reinstate the proceeding. In any event, his Honour found that the application for judicial review had no reasonably arguable prospects of success. The grounds of review were that the Tribunal's decision was 'affected by an error of law' and that the Tribunal 'denied the applicant procedural fairness', but no particulars of either of those claims were advanced.

6    His Honour found that on its face, the decision of the Tribunal appeared to deal with the application in a comprehensive way. No error was apparent in the decision. As far as the claim of denial of procedural fairness goes, the applicant attended the hearing before the Tribunal with the assistance of a migration agent and an interpreter. The Tribunal had put concerns about the applicant's evidence to him at the hearing, including concerns about the authenticity of the documents that the applicant had produced, and which the Tribunal found were fabricated.

The application for an extension of time and leave to appeal

7    The primary judge's decision not to set aside the dismissal of the application for judicial review is interlocutory in nature: BBW15 v Minister for Immigration and Border Protection [2016] FCA 128 at [5]. Therefore the applicant requires leave in order to bring an appeal from that decision: Federal Court of Australia Act 1976 (Cth) s 24(1A). Rule 35.13(a) of the Federal Court Rules 2011 (Cth) requires an application for leave to appeal to be filed and served within 14 days after the date when the judgment was pronounced. So by 15 April 2019, when the present application was filed, the applicant was five days out of time. His application for the extension of time and for leave to appeal were both listed before me.

8    It is well established that this court may approach an application for an extension of time by reference to the following non-exhaustive list of matters:

(1)    While there is no requirement to show special circumstances, an extension should not be granted unless the court is satisfied that it is proper to do so, and the prescribed period is not to be ignored.

(2)    An acceptable reason for the delay is normally required.

(3)    Any prejudice to the other parties, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension. But the mere absence of prejudice is not enough to justify an extension.

(4)    The merits of the application or appeal which will proceed if an extension of time is granted should be taken into account.

See Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (a case concerning an application for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which has been applied in other contexts on numerous occasions since).

9    In an affidavit filed in support of the present application the applicant said, by way of explanation for his delay in filing the application, that he had limited English language abilities and lacked legal assistance. However he was aware of the decision and orders made, since he was present by telephone on 27 March 2019 when the primary judge delivered his reasons. It was the applicant's responsibility to be aware of the relevant time frame for the filing of any appeal. Generally, ignorance of the time limit does not constitute a satisfactory explanation for the delay: MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25]. That said, I take into account that the length of the delay is short, so it does not require as much explanation as a longer one would.

10    Regarding prejudice, the Minister accepts that there is no prejudice to him beyond the cost of responding to a non-meritorious application and the public interest in the finality of decision-making. I therefore do not place much weight on that consideration.

11    As for the underlying merits, I do not consider that the primary judge's decision is attended by sufficient doubt to confer reasonably arguable prospects of success on any application for leave to appeal, were an extension of time to be granted. The grounds set out in the application are as follows (all grammatical errors in original):

1.    Jurisdictional error respondent failing to exercise the proper jurisdiction

2.    This give rise to remedies such as mandamus which is now sought

3.    The application based on this facts

12    These do not identify in any coherent way any error on the part of the primary judge. The applicant has filed no draft notice of appeal.

13    The applicant appeared in person at the hearing of this matter with the assistance of an interpreter. I explained to the applicant the relevance of the discretionary considerations I have listed and invited him to address me on them, including in particular why he said the primary judge's decision was incorrect. In reply, the applicant only repeated what he had said before the primary judge about the explanation for his failure to appear on 30 July 2018, including his claim that he had travelled to Melbourne for the hearing on a different day. He claimed that he had not been informed that the hearing had been rescheduled.

14    The Minister consented to my treating the applicant's statements from the bar table as evidence and I have taken them into consideration on that basis. I infer that the applicant is claiming that his Honour erred in finding, as he did, that there was no reasonable explanation for the applicant's failure to appear before him on 30 July 2018. However I do not consider that there is any real doubt about the correctness of that finding. His Honour was entitled to proceed on the basis of the affidavit that the applicant had filed, which said that the applicant did not know about the change in the date of listing because of an error on the applicant's part. It does not appear to me that his Honour's discretion miscarried when he concluded that this explanation for the delay was unsatisfactory.

15    The applicant did not attempt to identify any other error in the primary judge's decision. To the extent that the 'grounds of review' are intelligible, they indicate that the Tribunal failed to exercise its jurisdiction. I will deal with that below. Apart from that, no potential error in his Honour's judgment can be identified. I acknowledge the difficulties faced by an unrepresented litigant, and I do not expect any proposed grounds of appeal to be fully developed: see CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [6]. But it is not for this court to perform the function of identification of error, at least where no error is apparent on the materials: see EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12].

16    I have read the reasons of the Tribunal and those of the primary judge, and I respectfully agree with his Honour that no error appears in the Tribunal's reasons. I will treat the claim that the Tribunal did not exercise its jurisdiction as a proposed ground of appeal, to the effect that his Honour erred in not finding it arguable that the Tribunal failed to exercise jurisdiction. I can discern no basis for that claim in the Tribunal's reasons. The Tribunal was exercising its jurisdiction to review a decision of a delegate of the Minister to refuse a protection visa. It considered the applicant's claims for protection fully and dismissed them.

17    The claims were based on allegations by the applicant about a number of incidents where he or his relatives had been detained, questioned and, on one occasion, beaten by the Sri Lankan authorities. He claimed on the basis of those incidents that he met the criteria for protection as a refugee, or the complementary protection criteria in s 36 of the Migration Act 1958 (Cth) because of:

(1)    his Tamil ethnicity;

(2)    his actual or imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE), on account of his Tamil ethnicity and/or because his father or paternal aunt were members or associates of the LTTE; and

(3)    his arrest and charging by the Sri Lankan authorities for attempting to leave Sri Lanka illegally and/or illegally sending people to Australia.

18    The Tribunal did not find the applicant to be a credible witness, assessing his evidence as evasive and inconsistent. The Tribunal found the claims the applicant made about association between certain relatives and the LTTE were vague, lacking in detail and speculative. The Tribunal also found that the applicant had fabricated documentary evidence of an incident in which he said he was arrested and charged. The Tribunal also had regard to relevant country information. On the basis of all that, the Tribunal found that the applicant and his relatives were not interrogated, beaten or detained by the authorities as he had claimed.

19    After considering further country information concerning recent political developments in Sri Lanka, the Tribunal found that there was not a real chance that the applicant would face persecution in Sri Lanka in the reasonably foreseeable future because of his Tamil ethnicity. The Tribunal found that his fear of persecution because of race was not well-founded. For similar reasons, and having not accepted the applicant's claims about previous interrogation and detention, the Tribunal found that the applicant's fear of persecution because of his actual or imputed political opinion was not well-founded. For the same reasons the Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there was a real risk that he would suffer significant harm.

20    The applicant also claimed that if he were to be returned to Sri Lanka, he would receive adverse treatment as a failed Tamil asylum seeker who departed Sri Lanka unlawfully. The Tribunal accepted that but because of its earlier findings which led to the conclusion that the applicant did not have any political profile, including by reason of any connection with the LTTE, the Tribunal found that the treatment that the applicant was likely to receive on return would not constitute serious harm, and that the applicant would not be singled out or treated any differently because of his membership of a particular social group.

21    These were all conclusions that were within the Tribunal's jurisdiction to reach and that were open on the evidence that it summarised. The primary judge was therefore plainly correct that there was no reasonably arguable prospect of success in the application for judicial review. In assessing his Honour's decision for the purposes of the application for extension of time, I am confident that the proposed application for leave to appeal is not reasonably arguable. I am able to reach that level of confidence without the detailed argument and development which may attend a full hearing: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]. That is fatal to the application for an extension of time because granting an extension would be futile.

22    For those reasons the application for an extension of time is dismissed. There is no need to consider the application for leave to appeal separately, although it follows from what I have said that that application, too, lacks merit.

Associate:

Dated:    26 June 2019