FEDERAL COURT OF AUSTRALIA

BBU15 v Minister for Home Affairs [2019] FCA 1324

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to file a notice of appeal is dismissed.

2.    The applicant must pay the first respondent's costs, 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    The applicant is a citizen of Sri Lanka. He arrived in Australia by boat in 2012. In 2013 he applied for a protection visa under s 65 of the Migration Act 1958 (Cth). In 2014 a delegate of the first respondent (the Minister) refused to grant the visa. The applicant applied for review of the decision to the Refugee Review Tribunal. On 16 May 2015 the Tribunal affirmed the delegate's decision to reject the visa. The applicant sought judicial review in the Federal Circuit Court of Australia. On 18 January 2018 that court dismissed the application.

2    Rule 36.03(a)(i) of the Federal Court Rules 2011 (Cth), as in force at the time, required the applicant to file any notice of appeal within 21 days of the primary judge's decision. He did not do so, but on 10 December 2018 he filed an application for 'an extension of time to seek leave to appeal'. The Federal Circuit Court's decision dismissing his application for judicial review was not interlocutory, so the applicant does not need leave to appeal. But he does need an extension of time, and I will approach his application accordingly.

Application for an extension of time to appeal - principles

3    Rule 36.05(2) of the Federal Court Rules permits a party who wants to apply for an extension of time within which to file a notice of appeal to make the application after the stipulated period has expired.

4    Leave to appeal out of time is to be determined by the court's view of the demands of justice in accordance with a broad judicial discretion, and not simply upon the application of any verbal formula: Jess v Scott (1986) 12 FCR 187 at 188 (Lockhart, Sheppard and Burchett JJ).

5    While there is no requirement for the applicant to show special circumstances in order to be granted an extension of time to appeal, an extension should not be granted unless the court is positively satisfied that it is proper to do so: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348 (Wilcox J).

6    It is significant here that the applicant's delay in taking any steps after expiry of the stipulated time to initiate an appeal is a long one, of approximately 10 months. The prescribed period is not to be ignored; the prima facie rule is that proceedings commenced outside that period will not be entertained: Hunter Valley Developments at 348.

7    Consequently, it is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time: Hunter Valley Developments at 348. In general, the longer the delay the more persuasive the explanation needs to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] (Wigney J). It would require something very persuasive indeed to justify a grant of leave after, for example, a year: Jess v Scott at 195. In my view, the same goes for a delay of approximately 10 months.

8    Generally, other matters that should be considered when deciding whether to grant an extension of time are any prejudice to the other parties (noting that the mere absence of prejudice is not enough to justify an extension) and the merits of the proposed appeal: Hunter Valley Developments at 349.

Explanation for delay

9    The applicant swore an affidavit on 4 December 2018 seeking to explain the delay in filing a notice of appeal or application for an extension of time. He says he suffers from post-traumatic stress disorder (PTSD) resulting from persecution he faced in Sri Lanka. He instructed a lawyer to proceed with an appeal from the primary judge's decision of 18 January 2018. But:

she make [sic] a mistake in the application and missed some pages in the fax to the court causing the application to be rejected. Because of that mistake I was deemed out of time to put in the appeal application. The lawyer then informed me that she would not take on my case anymore and refunded my money. Dumbfounded and shocked with the situation, I felt [sic] into depression and that has worsened my PTSD symptoms causing me unable [sic] to work.

10    The applicant says that at the time of swearing the affidavit he was homeless (despite giving what appears to be a residential address in the affidavit and as an address for service). He says:

Recently, a refugee advocate told me that my case has a prospect of success but I want to confirm this by seeking advice from a barrister. As I do not have enough money to fund the appeal, I am needed [sic] to find a barrister who is willing to take on this matter pro bono.

11    As at the date of the affidavit no barrister had been prepared to act pro bono, although the applicant had been 'saving up some money to pay the barrister fee after my case has been accepted for filing'. Evidently the applicant was unable to secure a barrister's representation, as he represented himself at the hearing of the application with the assistance of an interpreter.

12    I do not find this explanation to be persuasive, and it is certainly not persuasive enough to explain adequately the long delay between the primary judge's decision and the filing of the application for an extension of time.

13    If there was indeed a problem with the faxing of the application to the court, which caused it to be rejected, it is implausible that any lawyer acting for the applicant would cease to act for him immediately thereafter, without at least taking the simple step of rectifying the problem with the missing pages and re-faxing the application to the court. While the applicant has provided the name of the lawyer, he has not provided any other detail, such as when the attempt to file the application was made, and to which registry. There are no documents annexed to the affidavit which verify the claim, such as correspondence with the lawyer or the court about the problem, or, most obviously, a copy of the application.

14    I have taken into account the fact that the applicant is self-represented and is not proficient in the English language, although I infer he had some assistance with the preparation of the affidavit. I also acknowledge that if he did indeed become homeless, that makes it unlikely that he retained any documentation. Nevertheless, given the implausibility of the claim and the absence of any detail or supporting evidence I do not find on the balance of probabilities that the applicant did attempt to file an application within time, and was defeated by the series of events he described.

15    Even if I did accept that claim, and even if I accepted the claims that he suffered from exacerbated mental health problems that made him unable to work, and that he is currently homeless, there is no indication of when he became homeless and no explanation of why over the course of over 10 months he was unable to take the apparently simple step of re-faxing the application with the previously missing pages added in. PTSD, depression and homelessness may all be capable of explaining the delay, but the affidavit leaves the link unsaid. There is a lack of detail about the claim that a refugee advocate told him that his case has a prospect of success; who said that and exactly when does not appear in the affidavit. It is implausible that if the applicant had been given that encouragement, he would nevertheless further delay making any application in order to try to secure a barrister pro bono, which he must have known might not prove possible. There is no detail about what attempts have been made to find a barrister who will act pro bono. The plausibility of the evidence is not enhanced by the incongruity between the claims, on the one hand that the applicant is homeless, and on the other hand that he has been saving up to pay a barrister.

16    I do not accept the applicant's evidence, and even if I did I do not consider that it provides a persuasive explanation of the delay in filing a notice of appeal or an application for an extension of time to appeal. If the delay had been short this would perhaps not weigh heavily against granting the application, but since it is approximately 10 months, I consider the delay to be an important consideration which stands in the way of success for the applicant.

Prospects of proposed appeal

17    The Minister has conceded that he has suffered no prejudice, so I do not need to consider that any further in deciding how to exercise the discretion. But the Minister has submitted that there are no arguable grounds of appeal. The applicant has not filed any draft notice of appeal. However, he is self-represented so I will not treat that as fatal to the application.

18    On 10 December 2018 the court did receive a purported notice of appeal (bearing the date 27 November 2018) which contained the following grounds of appeal (all errors in original):

1.    The decision has a judicial error

2.    The decision was incorrect because the Administrative Appeals Tribunal member uses incorrect information in the judgement and was bias against me.

19    I am prepared to treat this as a draft notice of appeal, but it does not shed much light on the basis, if any, on which the appeal might be prosecuted. The only claim that even approaches specificity is the claim of bias, but there is no evidence supporting that allegation and nothing in the Tribunal's reasons suggests any bias at all on the part of the Tribunal member. No claim of any such bias was agitated before the primary judge.

20    I therefore place no weight on the purported notice of appeal. The applicant was legally represented in the Federal Circuit Court, however, so it is possible to discern a basis on which it might be argued that the Tribunal fell into jurisdictional error, and thus why it might be argued that the primary judge was wrong to find that it did not.

21    In assessing the prospects of success, I must approach the question at a reasonably impressionistic level, which may be captured by asking whether the ground is 'arguable', 'reasonably arguable', 'sufficiently arguable' or has reasonable prospects of success: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J).

22    Also, while the applicant's lack of legal representation in this court necessarily requires me to reconsider the arguments advanced before the primary judge, it would be inappropriate if that were to lead me to approach the question as though the judgment appealed from had never been delivered. To succeed if an extension of time were to be granted, the applicant would have to demonstrate error in the Federal Circuit Court's decision. That necessarily confines him to the ground of review he raised in that court.

23    There was one ground agitated before the primary judge, namely that the Tribunal erred by failing to comply with Ministerial Direction Number 56. This was a direction that the Minister made pursuant to s 499(1) of the Migration Act, which was binding on the Tribunal under s 499(2A). The aspect of the Direction which the applicant submitted was relevant was the requirement that decision-makers take into account a document known as the Procedures Advice Manual 3: Refugee and Humanitarian Guidelines (PAM 3 Guidelines).

24    The Tribunal referred to the PAM 3 Guidelines in its written reasons. But it only did so at the very end, in a part of the reasons headed 'ATTACHMENT B RELEVANT LAW'. The reference (at [142]) was as follows:

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

25    That is a correct statement of the relevant requirement in Direction 56. However there is no express reference to the PAM 3 Guidelines or to Attachment B elsewhere in the decision, including in the main body of the reasons, or in Attachment A, which sets out relevant country information. The primary judge thus (at [11]) identified the question as whether the Tribunal had actively engaged with and considered the PAM 3 Guidelines, as far as they were relevant, or whether it had instead merely recited the requirement that the factor be taken into account.

26    That was undoubtedly the correct question: see Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [54]. His Honour was also correct to approach it by considering the Tribunal's decision as a whole in order to determine whether the Tribunal did nevertheless address the necessary factors in the PAM 3 Guidelines or whether, if it did not do so, that was because it did not consider them material to its decision: see Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [33]-[34]; Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 at [48].

27    The PAM 3 Guidelines deal extensively with the subject of prison conditions that may contravene Article 7 of the International Covenant on Civil and Political Rights [1980] ATS 23. Relevantly, they say at [P A301.29] 'Imprisonment/Prison conditions':

Detention is not of itself a breach of Article 7, although particularly harsh conditions of detention may constitute a violation of Article 7. Prison conditions may constitute cruel, inhuman or degrading treatment or punishment if they seriously or systematically deprive a detainee of human dignity.

As with all types of torture and cruel, inhuman or degrading treatment or punishment, a minimum level of severity is necessary in order to breach Article 7. The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim.

28    The applicant's protection claims included a claim that if he was returned to Sri Lanka, he would be captured and tortured. That is why, the applicant said, the PAM 3 Guidelines were relevant, so that the Tribunal would commit a jurisdictional error if it did not take account of them.

29    The Tribunal did give detailed consideration to the applicant's claims that he would suffer harm at the hands of the authorities on his return to Sri Lanka (at [76]-[79]). That was in the course of considering whether the applicant was a refugee. On the basis of country information it accepted that he would be detained and questioned for a short period. But it found that he did not face a real risk of serious harm. It considered that there was no more than a remote chance of mistreatment of returning asylum seekers, because otherwise reports of that mistreatment would be more widespread and confirmed. It found that the law concerning those who, like the applicant, departed illegally from Sri Lanka was likely to mean that he faced, at most, a fine. The country information indicated that returnees were not screened in any discriminatory way. The Tribunal considered, and rejected, the applicant's claim that on his return the authorities would impute to him an anti-government or pro-Tamil opinion. There was country information in Attachment A to the reasons supporting these findings.

30    The Tribunal also addressed the subject of the treatment the applicant would receive on his return when it considered his complementary protection claims. On the basis of its earlier findings it found that there was not a real risk that he would suffer serious harm.

31    The primary judge went through these aspects of the Tribunal's reasons in detail. His Honour also considered the applicable authorities. He inferred from the course of the Tribunal's reasons that the Tribunal had considered the factors identified in the PAM 3 Guidelines, including the relevance of the duration of imprisonment to the assessment of claims of likely harm. Given that the Tribunal found that the applicant would be unlikely to be detained for very long, it follows that it did not consider that other aspects of the PAM 3 Guidelines were relevant. This was, of course, in the context of the fact that there was express reference to the PAM 3 Guidelines in the Tribunal's reasons, indicating that the Tribunal was aware of them. It would be surprising if a specialist tribunal like the Refugee Review Tribunal was not so aware.

32    The primary judge thus concluded that the Tribunal had read and understood the PAM 3 Guidelines and had taken them into account. In my view, his Honour's reasoning, as I have described it, indicates that his conclusion was plainly correct.

33    The Tribunal's reasons bear out his Honour's construction of them. The Tribunal was aware of the PAM 3 Guidelines. But it found that on his return the applicant would probably be detained for a short time and fined. It found, on the basis of country information and other evidence, that there was no real prospect that the applicant would suffer harm at the hands of the authorities on his return to Sri Lanka. Once it made those findings, there was simply no call to go through any further assessment of whether the applicant would be subject to particularly harsh conditions of detention, or cruel, inhuman or degrading treatment or punishment. The inference in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 346 [69], that those matters were not mentioned in the Tribunal's reasons because they were not considered by it to be material (or relevant), is readily made.

34    The only ground of appeal that would be available to the applicant, resting as it must upon the only ground of review put to his Honour, has no reasonable prospect of success.

Outcome

35    In the absence of any adequate explanation for his long delay in filing a notice of appeal or application for an extension of time to appeal, and in the absence of any proposed ground of appeal that has reasonable prospects of success, the application for an extension of time must be dismissed, with costs.

Associate:

Dated:    21 August 2019