FEDERAL COURT OF AUSTRALIA

AWU16 v Minister for Immigration and Border Protection [2019] FCA 1241

ORDERS

THE COURT ORDERS THAT:

1.    The time in which the applicant file an appeal be extended to 18 October 2018.

2.    The draft notice of appeal filed on 18 October 2018 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 4pm on 13 September 2019, or such later time as the Court may allow.

4.    A referral for pro bono assistance for the applicant be made pursuant to r 4.12 of the Federal Court Rules 2011 (Cth).

5.    The proceeding be listed for hearing in the November Full Court sittings.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction and summary

1    The applicant seeks an extension of time pursuant to r 36.05 under the Federal Court Rules 2011 (Cth) to file a notice of appeal from orders made by the Federal Circuit Court on 24 September 2018, dismissing the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal and ordering the applicant to pay the first respondent’s costs in the amount of $7,328.00: see AWU16 v Minister for Immigration & Anor [2018] FCCA 2721.

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    For the reasons set out below, the application will be granted.

Relevant background

4    The applicant is an Ethiopian national and arrived in Australia, on a valid visa, in July 2011 with his wife. The Tribunal’s reasons indicate he came to Australia for a professional development program. While he was here, and after an event he claimed occurred in Ethiopia in early September 2011, on 14 October 2011 the applicant applied for a protection (Class XA) visa. The visa was refused by a delegate on 30 December 2011. The applicant applied to the Tribunal for a review of the delegate’s decision and on 8 April 2013 the Tribunal affirmed the decision of the delegate not to grant a protection visa.

5    On 6 May 2013 the applicant applied to the Federal Circuit Court for a review of the Tribunal’s decision. On 4 March 2014 the Federal Circuit Court made orders by consent setting aside the Tribunal’s decision and remitting the application for review to the Tribunal. I note the Tribunal gives a different date for this decision, but I am satisfied, having looked at the Minister’s submissions and checked the Commonwealth Court’s Portal, that the correct date is 4 March 2014. The applicant appeared before the Tribunal on 7 August 2014 and on 26 August 2014, and again on 10 December 2015.

6    The Federal Circuit Court explains the three hearings at [11] of its reasons. In substance, the review and consideration of the applicant’s case has been deleteriously and significantly affected by the practice of allowing Tribunal members to hear reviews which they may not be able to complete, because their contract of appointment expires and they are then not reappointed. This approach to administration is one which might benefit from some reflection on the part of those responsible for the conduct of reviews within the Tribunal.

7    Eventually, on 24 March 2016 the Tribunal, as constituted by a third Tribunal member, affirmed the delegate’s decision to not grant a protection visa. The applicant was represented by a migration agent before the third Tribunal.

8    The process of the judicial review of the Tribunal’s decision in the Federal Circuit Court took a further 18 months or so. It is now not far off 8 years since the applicant lodged his protection visa application.

9    It is supremely ironic, and not the first time, that in circumstances where the merits review system has taken almost three years to produce the outcome which now comes before this Court, the Minister refuses to consent to an extension of time where the delay is no more than three days. Applicants and administrative decision-makers are being measured by very different standards, to the significant prejudice of applicants.

The extension of time application.

10    On 18 October 2018 the applicant filed an extension of time application in this Court. The applicant was unrepresented before the Federal Circuit Court and is unrepresented before this Court.

11    In his affidavit in support of the application the applicant set out the following reasons for the three day delay:

4.    I did not know I had 21 days to appeal to the Federal Court of Australia and I did not have a lawyer at that time either. I went to the Asylum Seeker Resource Centre (ASRC) to seek assistance in this matter from them and had a consultation with a trainee lawyer there on 10 October 2018. The trainee lawyer told me that I had 21 days to appeal and that the ASRC was willing to file the application for me however I had to bare significant costs if my appeal was unsuccessful. The trainee lawyer also told me that a ground possibly exists for the appeal however I was unable to understand what this meant on my own and I was not sure if there was merit in my case as well.

5.    I represented myself at the Federal Circuit Court therefore did not want to be unrepresented again at the Federal of Court of Australia therefore I visited James Wardlaw from WLW Migration Lawyers on 15 October 2018. James told me that the 15 October 2018 was the last day to appeal to the Federal Court of Australia however that I could possibly submit an extension of time application. James also told me that there would be costs involved in assisting with my appeal therefore I went back to the ASRC the next day to see if they could assist me on a pro bono basis. The ASRC advised that they could no longer assist me because I was now out of time and further I did not meet their requirements to be provided with assistance on a pro bono basis as I am I undertaking employment currently.

6.    I was unable to appeal the case by myself before 15 October 2018 as I did not know how to prepare the application and the procedure involved.

12    I gave the applicant an opportunity to make oral submissions rather than put in written submissions ahead of the hearing, given he was self-represented. The applicant added that he and his wife have been struggling financially, that because he was working he did not quality for legal aid, and that he had some help to put in the extension of time application. He sought to explain what he considered was wrong with the Tribunal’s decisions, by reference to two particular matters which he frankly and properly accepted he had not raised before the Federal Circuit Court. They were:

(a)    the Tribunal did not properly consider his status as a human rights activist; and

(b)    the Tribunal accepted that he had done humanitarian work but did not accept that he would be harmed because of that work.

13    He also confirmed he wished to press the s 438 of the Migration Act 1958 (Cth) certificate issue (to which I refer below), and told the Court, in substance, he knew that issue involved the Tribunal withholding a certificate from him but that was all he knew.

The Federal Circuit Court’s decision

14    The applicant did not file any submissions in the Federal Circuit Court, but he did attend the hearing and made oral submissions in support of his judicial review application. The oral submissions made by the applicant were outlined at [6], [11]-[12] and [21] of the Federal Circuit Court’s decision.

15    The grounds of judicial review which the applicant himself put before the Federal Circuit Court are identified at [4] and [23] of the Federal Circuit Court’s reasons:

The decision of the Tribunal was affected by an error of law

…

The Tribunal failed to afford the applicant procedural fairness

16    The Federal Circuit Court discussed and determined several arguments under these two headings, including some raised at the hearing by the applicant. It is not necessary to set those out on this application, although those matters may re-emerge on the appeal itself.

17    The Federal Circuit Court also determined a matter properly raised by the Minister before it, namely the application of the principles set out in Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252.

18    As I have noted in [1] above, the Federal Circuit Court rejected the applicant’s submissions and dismissed his application for judicial review.

Resolution

19    In the draft notice of appeal, the only ground of appeal raised relates to the s 438 certificate. That, in my opinion, is sufficient for the Court’s consideration of the extension of time application.

20    In my opinion the delay of three days is so small that unless there was absolutely no explanation for the delay and the merits of the appeal were hopeless, to shut this applicant out of having his appeal heard and determined in the usual way would be disproportionate and unjust. In the circumstances of this applicant, and taking into account the inordinate amount of time his case has been delayed by factors not of his making, I consider it is clearly in the interests of the administration of justice to extend the time in which he can lodge an appeal.

21    Counsel for the Minister also properly pointed out that since 2 May 2019, the time frame for an appeal from the Federal Circuit Court is now 28 days: see Federal Court Amendment (Court Administration & Other Measures) Rules 2019 (Cth), introducing what is now r 36.03(a) of the Federal Court Rules. Again, properly, he submitted that the Court could take into account that under the new rules, the applicant’s appeal would have been within time. That was a fair concession, and I take into account that the period of delay is one which, if it had occurred after 2 May 2019, would have nevertheless left the applicant within time for his appeal.

22    The applicant’s circumstances (as disclosed in his affidavit, and in particular, his lack of access to legal representation) were said by the Minister’s counsel during oral argument to be ‘not uncommon’. I take a different view. What is more unusual about the applicant’s circumstances is that he has work rights, because he arrived lawfully in Australia. Ironically, the fact that he is working, and earning income, means he falls between two stools, so to speak. On the one hand, he is not earning enough income to afford a private lawyer (he told the Court that he and his wife have three children); but on the other hand the fact that he is earning income means he cannot satisfy a means test for assistance through community legal centres (as he noted in his affidavit, in relation to the Asylum Seeker Resource Centre).

23    I consider the applicant has provided an adequate explanation for the very short delay in the filing of his appeal, and his circumstances render it in the interests of the administration of justice to extend time.

24    These circumstances, together with my assessment that it cannot be said the s 438 ground of appeal is without merit, persuade me it is appropriate to extend time. The applicant did not have the benefit of any legal representation to conduct his judicial review before the Federal Circuit Court, so it is unsurprising that the grounds he raised himself were not well developed and were capable of being relatively easily rebutted by the Minister, to the satisfaction of the Court. As to the s 438 issue, the application of the principles in SZMTA to a case where it is accepted the certificate was not disclosed, and it is accepted the certificate was invalid, are matters on which the applicant should have a full opportunity to present arguments in an appeal. I say no more than that.

25    In addition to orders extending time, there will be an order that a referral for pro bono assistance pursuant to r 4.12 of the Federal Court Rules is to be made.

26    The parties will be advised in due course of when the appeal will be listed for hearing.

27    Once he has secured legal representation the appellant may wish to raise other grounds. There will be an order granting him leave to file an amended notice of appeal, in recognition of the fact that it will be a matter for his appointed legal representative to determine what grounds of appeal should be raised. On the appeal, and taking into account the Minister’s position, the Court can then consider whether the applicant should be able to raise all or some of the grounds in any amended notice of appeal.

Associate:

Dated:    8 August 2019