FEDERAL COURT OF AUSTRALIA

DKT17 v Minister for Immigration and Border Protection [2019] FCA 1629

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an application for an extension of time in which to appeal from a judgment of the Federal Circuit Court of Australia (FCCA). On 20 August 2019 I made an order dismissing the application. I gave oral reasons for the order and now provide written reasons to substantively the same effect.

2    The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority. By that decision, the Authority affirmed the decision of a delegate of the Minister for Immigration and Border Protection refusing to grant the applicant a Safe Haven Enterprise (subclass 790) visa under the Migration Act 1958 (Cth).

3    The applicant requires an extension of time in which to commence an appeal from the judgment of the primary judge because his application was filed seven days after the expiration of the period prescribed for the commencement of an appeal.

4    This Court has a discretion to extend the time in which to appeal. The principles guiding the exercise of the discretion are well established. 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 might be suffered by the applicant if the extension were to be refused, and relatedly, the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 – 349. These principles are not to be taken as exhaustive: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33] – [36] (per Griffiths J).

5    The delay is a short one, being only seven days. The Minister does not submit that he would suffer prejudice if the extension of time were granted. However, the Minister’s position is that I should not grant the extension of time for two reasons: firstly, the Court cannot be satisfied that there is an adequate explanation for the delay and, secondly, because the proposed grounds of appeal have no merit.

Explanation for the delay

6    In an affidavit filed in support of the application for the extension of time, the applicant deposed “There is delay in filing as copy of judgment not received”. The applicant was cross-examined on that evidence. I will summarise his oral evidence shortly.

7    At the Court’s request, Counsel for the Minister made oral submissions on the application for the extension of time first. At the commencement of her submissions, Counsel tendered an email from the Associate to the primary judge apparently addressed to both parties in the proceedings below. The email states:

Dear parties.

I refer to the above matter. It appears that I neglected to advise you that judgment would be delivered today. I apologise for this oversight.

Please find attached a copy of the judgment as well as the orders made.

Yours sincerely

8    An issue arose as to whether the Chambers of the primary judge sent the email to the correct email address for the applicant. The applicant claimed that the email address was wrong because there was an “a” in his name where there should have been an “e”. The applicant denied that he had received a copy of the email.

9    The email address given by the applicant for the purposes of these proceedings is consistent with the spelling that he asserts should have been used by the FCCA.

10    By his originating application in the FCCA, the applicant identified his email address for service in identical terms to that used by the Associate of the primary judge, except that the originating application used the domain “ymail.com” rather than “gmail.com”.

11    Even if I were to assume that the correct email address for the applicant was as stated on the application filed in the FCCA, albeit with the domain name “gmail.com” rather than “ymail.com”, I would not conclude that the applicant had received, in the relevant sense, the judgment of the primary judge on 4 April 2019 by way of email from the Associate.

12    When a judgment is to be delivered by a court, the proper course is to advise the parties when judgment is to be delivered. Importantly, in cases such as the present, on the delivery of judgment, an applicant may attend and be assisted by the services of an interpreter, and by that means have the orders of the Court interpreted and so understand the result. Clearly, that did not occur in the present case.

13    I take into account that when the applicant said in his evidence-in-chief that he had not received the email, his evidence was not directly or effectively challenged.

14    Even if the Associate’s email was sent to the correct address, I am not satisfied that the applicant, a non-English speaking self-represented litigant, is a person who could have understood the contents of the email immediately on the date that it was sent.

15    I proceed on the basis that the email was either not sent to the correct address or, if it was sent, it was of little immediate utility to a person in the applicant’s position.

16    The applicant went on to say that he attended at the Registry of the FCCA. He said that he was advised that judgment had already been delivered in his matter and that he was then provided with a copy of the reasons for judgment. The applicant could not recall exactly when that occurred. The applicant’s evidence was to the effect that he sought the advice of a lawyer, that he was advised by the lawyer that he required an extension of time in which to appeal and that he then attended at the Registry of this Court and made the present application.

17    I do not consider the delay in this matter to be the result of deleteriousness or carelessness on the part of the applicant. His conduct does not demonstrate an attitude of disregard for the requirements of the Court rules. The applicant was entitled to use the full period of time that would ordinarily be available to a person in his position to obtain legal advice and to commence an appeal. In all of the circumstances, I do not accept the Minister’s submission that the explanation for the delay is unsatisfactory.

18    The circumstance that there is an adequate explanation for the delay is to be given considerable weight in determining whether or not an extension of time should be granted. I would be minded to grant the extension of time unless it could be shown that the grounds of appeal are so unmeritorious that they cannot succeed.

Proposed grounds of appeal

19    The proposed grounds of appeal are set out in a draft notice of appeal lodged with the Court on 2 May 2019. They are expressed as follows:

Federal Circuit Court made a jurisdictional error.

Particulars

Authority made errors cumulatively based on evidence before the Authority.

20    As Counsel for the Minister correctly submitted, the grounds of appeal are uninformative. They do not adequately particularise any appealable error on the part of the primary judge or any jurisdictional error of the Authority.

21    In an appropriate case, the Court may adopt a generous interpretation of grounds of appeal drafted by a person with no legal assistance and no English skills. That is especially so when the Court has the benefit of written and oral submissions which enable it to better comprehend the nature of the challenge that is made to the judgment from which an extension of time to appeal is sought. In the present case however, the applicant has filed no written submissions. Despite prompting and guidance from the Court, he has not taken the opportunity to give oral submissions and so has made no attempt to identify any appealable error upon which he relies.

22    In FLW17 v Minister for Immigration and Border Protection [2019] FCA 352, Bromwich J said, at [17]:

It is well-established and beyond doubt that an appeal, even by way of a rehearing, requires the identification of error, and is not merely a second trial hearing. No attempt at an identification of error on the part of the primary judge has been carried out by the appellant. It is not for this Court to perform that function. As no identifiable error on the part of the primary judge is alleged, let alone established, and none is otherwise apparent, the appeal must be dismissed with costs.

23    To that observation I would add the qualification that, in cases such as the present, it may be apparent that the applicant or putative appellant intends to assert more generally that the primary judge committed an appealable error by rejecting the grounds for judicial review. Subject to the rules of procedural fairness, it may be open to a court to interpret grounds of appeal generously in that fashion and so ask whether an appealable error of that kind is identifiable on the face of the reasons for judgment. That is the course I will take in the present case.

Merits of the proposed appeal

24    The applicant is a citizen of Sri Lanka. He made an application for a Safe Haven Enterprise (subclass 790) visa on 29 July 2016. For the applicant to be eligible for the grant of the visa it was necessary that the Minister be satisfied that the applicant fulfilled (relevantly) the criterion in s 36(2)(a) of the Act or the criterion in s 36(2)(aa) of the Act. In support of his application, the applicant relied on a written statement, referred to by the Authority as the “SHEV statement”. The Authority also had regard to a record of an interview conducted with the applicant shortly after his arrival in Australia.

25    The applicant’s claims may be summarised as follows:

(1)    The applicant is a Tamil from the Northern Province, Sri Lanka. Sri Lankan authorities often questioned his father to ascertain whether the applicant was involved with the Liberation Tigers of Tamil Eelam. The applicant feared that he would be “disappeared” and killed by the Sri Lankan authorities as he claimed that other Tamil youths had been.

(2)    In August 2012, when the applicant was living in Colombo, he was approached by Sri Lankan army officers while he and 15 Tamil friends were at a beach. The authorities asked the applicant whether he and his friends were from Northern Province. The authorities assaulted the applicant, breaking his thumb. The applicant claimed at his SHEV interview that he had also been knocked unconscious and that he suffered a spinal cord injury as a result of the assault, which required him to be hospitalised for a week. The authorities arrested some of his friends in the incident, some of whom were subsequently killed by the authorities.

(3)    Following the beach incident, the applicant returned to the Northern Province. Sometime after his return, the Criminal Investigation Department (CID) questioned local youths and the applicant’s father about him. The applicant’s father told the CID that the applicant had left Sri Lanka. CID officers beat the applicant’s father, and told him that the applicant was wanted by the CID in Colombo. They told the applicant’s father that they would check the applicant’s travel records.

(4)    The applicant arrived in Australia in 2012. After his arrival, the applicant’s father told him that the CID and paramilitaries returned and beat him again. In 2016, the CID arrested the applicant’s brother and questioned him about the applicant’s whereabouts.

26    The Authority accepted that the applicant and his friends were assaulted by Sri Lankan authorities in the beach incident, and that the applicant’s thumb was injured and required medical treatment. However, the Authority did not accept that the applicant had suffered a spinal injury or lost consciousness or was admitted to hospital for a week as the applicant had claimed in his SHEV interview. The Authority found that there were multiple inconsistencies in the applicant’s claims as variously presented in an entry interview conducted shortly after his arrival in Australia, his interview with the Minister’s delegate and his written statement. The Authority said that the inconsistencies undermined the credibility of the applicant’s claims. The Authority said that it was not satisfied that the applicant fulfilled the alternate criteria in s 36(2)(a) and s 36(2)(aa) of the Act.

27    In the proceedings before the primary judge, the burden was on the applicant to show that the Authority’s decision was affected by jurisdictional error: 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 grounds for judicial review are set out in the reasons of the primary judge (at [14]) as follows:

l.    The Second Respondent in its decision and reasons, rejected unreasonably and used excessive authority to refuse to accept the contents of the Articles in English published by Tamilnet dated 12 April 2017, Human Rights watch and the UK Home Office via the UNHCR refworld website which are recent reports, on the grounds that there are no exceptional circumstances to consider where as the Second Respondent relied on the report by UK Home Office on 28 March 2017 which it not a recent publication. Ignoring relevant materials on irrelevant grounds by the Second respondent is a jurisdictional error.

2.    The Second Respondent made an error in ignoring the fact that at the entry interview the applicant was asked to give basic information about himself and was not permitted to give detailed information during that interview which he gave in the SHEV claims and during the DIBP interview. The finding of the respondent is unreasonable and arbitrary and had made a jurisdictional error.

3.    The Respondents misinterpreted and was confused as to the details given during the interview through the assistance of an interpreter, and failed to give the applicant an opportunity to respond to any doubts the respondents had before rejecting the claims. The Respondents failed to adhere to procedural fairness and thus made a jurisdictional error.

4.    The Second respondent used excessive authority in rejecting the applicant’s main claims without any valid grounds or evidence and solely on speculations and suspicions. As the Respondents had not given serious considerations using the excessive authority, jurisdictional error was made thereby.

5.    The finding of the Second Respondent is arbitrary and confusing. The Second responded all throughout the rejection failed to give any valid grounds or evidence in rejecting the applicant’s main claims except to reject on presumption and wrongfully rejecting the applicant on credibility grounds.

6.    The Second respondent failed to give the applicant to respond to any doubts it had and thus made an error on procedural fairness.

Ground 1

29    In relation to this ground, the primary judge said:

20.    The Authority was not permitted to consider any of the reports provided or identified by the applicant if those reports constituted new information under s 473DC, and the Authority was not satisfied of the matters prescribed in s 473DD. The Authority considered the applicant’s invitation to consider the reports, and cannot be said to have ignored the reports. The relevant question is whether the Authority misapplied s 473DD.

21.    The Authority found in respect of the TamilNet article that, whilst it post-dated the delegate’s decision, it related to a man facing charges in court and was not relevant to the applicant’s claim. The applicant had not in respect of the TamilNet article identified its relevance, or satisfied the Authority of the matters prescribed in s 473DD. The Authority’s determination in respect of the article was open to it. I draw the same conclusion in respect of the Human Rights Watch article. The Authority found that the applicant had not advanced any explanation as to why the most up to date report released in January 2017 could not have been provided to the delegate, or why the report contained information that was unknown at the time of the delegate’s decision. Leaving aside the infelicity in expression, the Authority’s reasons adequately explain its determination for being unsatisfied of the matters in s 473DD.

22.    As to the UK Home Office report, the Authority identified the most recent report, which the applicant had not identified specifically in his submission to the Authority, and took the most recent report into account. It was open to the Authority to do so.

23.    The task of the Authority, in considering whether to receive the new information, was to engage with that information and the requirements of the Migration Act. The Authority did so. Ground 1 fails to establish any jurisdictional error.

(Footnotes omitted)

30    The applicant did not take the Court to the information upon which he had sought to rely before the Authority and so has not established any prime facie error that the Authority erred in its application of s 473DD of the Act in relation to that information.

31    The Court discerns no error apparent on the face of the reasons of the primary judge in relation to the issues his Honour disposed of.

Ground 2

32    This ground for judicial review concerned the Authority’s conclusion that the incident at the beach in August 2012 did not unfold in the way the applicant had claimed.

33    The ground for judicial review was rejected by the primary judge for the following reasons:

24.    In the second ground the applicant asserts that the Authority ignored that he was asked only to give basic information at the entry interview, and that its findings were unreasonable and arbitrary. The applicant is here presumably referring to the Authority’s findings at [15] in which the Authority relied in part on the lack of any mention of the beach incident by the applicant during his entry interview as a reason for rejecting parts of that claim.

25.    That the Authority took into account what the applicant said, or relevantly, did not say, at his entry interview, does not in the circumstances of this case amount to jurisdictional error. The Authority adopted an appropriately ‘cautious’ approach in its reliance on the failure of the applicant to mention details of the beach incident at the entry interview. It was mindful of the fact that the applicant was not asked about the incident during the entry interview, and that the purpose of the entry interview was not to assess the applicant’s claims for protection. Nevertheless the Authority referred to the beach incident as being the ‘catalyst’ for the applicant’s departure from Sri Lanka and therefore considered the applicant’s failure to mention the incident in the entry interview undermined the credibility of his claims.

26.    The Authority referred to various other inconsistencies in the presentation of the applicant’s claims, culminating in its conclusions at [19]. There was no error in the Authority’s approach.

27.    This ground does not establish any jurisdictional error.

(Footnotes omitted)

34    In relation to the content of the entry interview, the Authority said at [15] of its decision that the applicant made no reference to the beach incident in his entry interview. The Authority continued.

…  I acknowledge that the entry interview is conducted shortly after the applicant’s arrival in Australia, that he is not represented during the interview and that the purpose of the interview is not to assess an applicant’s claim for protection. I am mindful too the applicant explained in the SHEV interview and in the IAA submission he was not asked about the beach incident during the entry interview. However, given the beach incident is the catalyst to the applicant’s departure from Sri Lanka, I consider the applicant not raising the beach incident at the entry interview undermines the credibility of his claims.

35    The Authority’s reasons must be read as a whole and are not to be approached with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. On a fair reading of the Authority’s reasons, it is apparent that the identified omission from the entry interview was one of a number of factors taken into account by the Authority in rejecting some of the applicant’s claims concerning the details of the beach incident and the injuries he had suffered as a result of it. The Authority said, at [16]:

The applicant has variously stated he was assaulted by the Sri Lankan army, the police and also referred to the army being in a police jeep in the beach incident. In the SHEV statement, he referred only to an injury to his thumb (which I take to be what he refers to as his ‘thump’ in the SHEV statement seeing as he provided an x-ray of his hand to the delegate at the SHEV Interview). At the SHEV interview, he claimed to have been knocked unconscious, but also said he fell unconscious when seeing blood and that he suffered a spinal injury which required him to be hospitalised for 1 week. In the SHEV statement and in the IAA submission, the applicant claims some of his friends died after being arrested, In the SHEV interview, he made no reference to the Sri Lankan authorities killing any of his friends, only to their arrest. In the SHEV statement, he claims Mr R told him of the arrest and deaths of their friends, which is why he left Colombo. In the SHEV interview, he said that he learnt that information from Mr T and when the delegate brought that inconsistency to his attention, the applicant then claimed Mr R also told him, but after the applicant had returned to Northern province. At the SHEV interview, he claims his younger brother was arrested in 2016, whereas in the SHEV interview, he claimed it was his elder brother who was arrested in 2016. In the SHEV interview the applicant claims the CID and paramilitaries came to his home 4 times between his return from Colombo and his departure from Sri Lanka. In the SHEV statement, he refers to the CID and paramilitaries coming only two times, the second of which was after he departed Sri Lanka. I consider these multiple inconsistencies in the applicant’s evidence undermine the credibility of his claims.

36    In this passage of its reasons, the Authority identified a series of inconsistencies about the detail of the beach incident as between what it called the SHEV statement and the SHEV interview. The Authority did not err in identifying the beach incident as the catalyst for the applicant’s departure from Sri Lanka. That finding was open to the Authority to make, given that the incident occurred in August 2012 and the applicant fled for Australia in October of the same year.

37    In the circumstances, it was open to the Authority to give some weight to the fact that the incident had not been raised at the entry interview, notwithstanding that the applicant was unrepresented during that interview and that the purpose of the interview was not to assess his claims for protection. It may be that a different decision-maker might have reasoned to a different result. However, simply identifying that a different conclusion was open to the Authority does not establish jurisdictional error. The primary judge did not err in rejecting the second ground for judicial review.

Grounds 3 and 6

38    The primary judge rejected these grounds for the following reasons:

28.    In the third ground the applicant asserts that ‘the Respondents misinterpreted and was confused as to the details given during the interview’, and that it failed to give the applicant an opportunity to respond to its concerns. The applicant claims he was denied procedural fairness. The sixth ground is to similar effect, by which the applicant contends that the Authority failed to give the applicant an opportunity to respond to its doubts.

29.    The Authority’s obligation to give procedural fairness to the applicant in this matter was limited. The Authority in the conduct of a fast-track review is required to make a fresh decision and is not restricted to the correction of error in relation to the issues considered by the delegate to be determinative. The Authority did not conduct an interview in this matter, and neither was it required to. Further, no denial of procedural fairness arises from the mere fact that the Authority made different findings to those findings made by the delegate.

30.    In the circumstances, there was no error by the Authority in failing to put any concerns it had to the applicant.

31.    To the extent that the applicant in the third ground asserts error in respect of the delegate and the conduct of the SHEV interview, the Court does not have jurisdiction to conduct a review of the delegate’s decision. The applicant had an opportunity, which he took, to advise the Authority of any concerns he had with the delegate’s decision and the delegate’s interpretation of his claims. The applicant sent a submission to this effect to the Authority.

32.    There is a related question whether the Authority performed its statutory task of review lawfully by engaging with the applicant’s submissions in relation to the inadequacies of the SHEV interview. In his submission to the Authority on 14 April 2017 the applicant is critical of the delegate’s decision which might be interpreted also as a criticism of the SHEV interview. The Authority at [4] of its decision states that it had regard to that submission. At [5] the Authority states that it had listened to the recording of the SHEV interview. The Authority there acknowledges that the applicant was nervous at that interview but nevertheless draws an adverse conclusion at [16] concerning inconsistencies in the applicant’s claims and evidence.

33.    If the applicant had put to the Authority specific concerns, for example, relating to the quality of interpretation at the SHEV interview, the Authority would have needed to have engaged with those concerns. In the present case, however, the criticisms of the delegate are more general and focus more specifically on the reasons for the delegate’s decision rather than the conduct of the interview.

(Footnotes omitted)

39    The primary judge was correct to reject these grounds for judicial review for the reasons that his Honour gave. The primary judge was correct to identify that the Authority stated that it had had regard to the applicant’s submissions in relation to the SHEV interview and the concerns that the applicant had raised about it. The Authority drew its own adverse conclusions having listened to a recording of the SHEV interview. On this application, it has not been established that the Authority erred in drawing those conclusions by reference to that interview.

40    No appealable error has otherwise been established in the manner in which the primary judge dealt with other issues that arose in the course of argument before him.

Grounds 4 and 5

41    Rejecting the fourth and fifth grounds of judicial review, the primary judge said, at [46]:

Whilst making findings without any evidence, or on the basis of mere speculation might point to jurisdictional error in a particular case, the Authority here gave clear, detailed and cogent reasons for rejecting critical parts of the applicant’s claims to fear harm. The Authority did not need positive evidence in order to reason by reference to inconsistent or implausible claims that it was not satisfied of those claims. The Authority’s credibility findings were open to it. The grounds fail to identify error by the Authority.

42    The primary judge did not err in concluding that the Authority’s credibility findings were open to it on the material before it. The applicant has not identified an arguable basis for asserting that the Authority erred in identifying the inconsistencies referred to at [16] of its reasons. Nor has it been shown (even on an arguable basis) that the weight attributed to the inconsistencies there identified was legally unreasonable in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Conclusion

43    As I have said, in determining whether or not an extension of time should be granted, I should take into account the prejudice that might be suffered by an applicant if the extension were not to be granted. That consideration is inextricably connected with the merits of the proposed appeal, because if it cannot be established that the applicant has reasonable prospects of succeeding on the appeal, then it follows that the refusal of the extension of time would not cause the applicant to suffer prejudice in the relevant sense.

44    It follows that, notwithstanding that I consider there to have been an adequate explanation for the delay in filing a notice of appeal, the extension of time should not be granted because the proposed appeal does not have sufficient prospects of success.

PROVISION OF WRITTEN REASONS

45    As has been mentioned, oral reasons in substantially the same terms as these written reasons were delivered on the day that I ordered that the application be dismissed. The oral reasons were given in the presence of the applicant and with the assistance of an interpreter. These written reasons will be sent to applicant at the email address provided by the applicant on the face of his originating application.

Associate:

Dated:    19 August 2019