FEDERAL COURT OF AUSTRALIA

CCC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 183

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to file an appeal is refused.

2.    The applicant is to pay the costs of the first respondent in the sum of $2500.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant, a citizen of Sri Lanka, arrived on Cocos Island as an unauthorised maritime arrival on 3 September 2012. On 25 May 2017, he applied for a Safe Haven Enterprise Visa (SHEV), which was refused by a delegate of the Minister on 16 October 2017. On 4 April 2018, the Immigration Assessment Authority (Authority), affirmed the delegate’s decision. The applicant sought a review of that decision but on 10 April 2019, when the matter was listed for hearing in the Federal Circuit Court (FCC), the applicant did not attend and pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) his application was dismissed. On 7 May 2019, the applicant applied to the FCC for his matter to be reinstated, but on 23 September 2019, that application was refused: CCC18 v Minister for Home Affairs & Anor [2019] FCCA 2688 (CCC18).

2    This matter involves two applications: (1) as the application seeking leave was filed 11 days out of time, an extension of time to file the application to challenge the decision to refuse the reinstatement (Federal Court Rules 2011 (Cth) r 35.13); and (2) if that is granted, as the challenged decision is interlocutory, an application for leave to bring this appeal (Federal Court of Australia Act 1976 (Cth) s 24(1A)): see for example, BBW15 v Minister for Immigration and Border Protection [2016] FCA 128 at [5] per Flick J.

3    The applicant appears unrepresented in this Court (as he was in the FCC), assisted by an interpreter.

4    At the hearing the applicant applied for an adjournment to enable him to attempt to get legal representation. That application was opposed by the respondent. For the reasons given below, that application was refused.

5    The applicant has filed an affidavit in support of the application for an extension of time and leave to appeal. In summary, he gives evidence that he is appealing because he believes that his case was not heard fairly by the FCC; that as a lay person he did not have much legal knowledge and had to get legal assistance to file his appeal, but did not find any; he filed his appeal on the last day for the application but it was not accepted by the Court as it was not in the right form; and that from that day he tried to find a lawyer but did not succeed and therefore he was late in lodging the application.

6    The affidavit also contained what the applicant described as the “reason to appeal” which was described as follows (as written):

I believe Primary Judge did not refer to my whole case and documents before dismissing my case. Some of the original statements I made to the Immigration at the first arrival not produced to the Courts.

The Second Respondent did not have those statements or taped recorder to consider prior to making the decision to dismiss my application.

7    In the application for an extension of time and leave to appeal the ground of appeal was identified in these terms (as written):

The primary Judge and the second Respondent did not find that the applicant was procedural fairness by not taking into consideration of recordings of the statement at the time of my entry to Australia, verbal responses and so it is a Jurisdictional error and the laws of natural justice was not followed.

8    The respondent opposed the extension of time, and the grant of leave.

9    For the reasons below, the application for an extension of time in which to file an appeal is refused. I note that in any event, leave to appeal would have also been refused.

Authority’s decision

10    It is unnecessary at this stage to recite the reasons for the Authority’s decision, they are accurately summarised by the FCC: CCC18 at [27] to [49].

Federal Circuit Court

11    The history of these proceeding in the FCC and the content of the reinstatement application are accurately summarised by the FCC: CCC18 at [50] to [59].

12    The FCC referred to the correct test in relation to determining the question of reinstatement, and then proceeded to consider the evidence and issues in this case. The FCC found that while the applicant’s explanation for the month long delay in filing the reinstatement application was satisfactory, his explanation for non-attendance at the hearing of the appeal was not, and that this weighed against reinstatement. The primary judge found that the absence of specific prejudice to the respondent weighed in favour of reinstatement. The FCC addressed the issue of merit and considered the applicant’s arguments on the grounds of appeal. Having done so, the primary judge concluded that there was no merit in the substantive application and therefore, the matter should not be reinstated.

Consideration

Application for an adjournment

13    As referred to above, at the hearing the applicant applied for an adjournment on the basis that he wished to obtain legal representation.

14    The relevant principles were recently summarised by Jackson J in WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 at [2]:

2. The principles governing an application for an adjournment to obtain legal representation in circumstances such as the present are well established and can be summarised as follows:

(1) Lack of legal representation is not, of itself, a reason to adjourn the hearing of a long scheduled application or appeal: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19].

(2) Other than in the case of persons appearing before a court for a serious criminal offence, there is no absolute 'right' to legal representation in this country, in the sense that a judge is required to adjourn the proceeding if the party has no lawyer: EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 at [18]; Jarrett v Westpac Banking Corporation [1999] FCA 425 at [6]; and Pallas v Minister for Home Affairs [2019] FCAFC 149 at [42(a)].

(3) Nevertheless, the fact that a party wishes to obtain legal representation is a relevant factor in considering the question of whether an adjournment should be granted: BSY16 v Minister for Home Affairs [2019] FCA 140 at [5].

(4) Matters that will be relevant in determining the weight to be given to that wish may include:

(a) the amount of time the party has had to obtain legal representation;

(b) the steps the party has taken to obtain such representation during that time;

(c) the explanation for any delay in that respect;

(d) the utility of any adjournment, including the likelihood of the appellant obtaining legal representation; and

(e) the time required for the appellant to do so,

see BSY16 at [5]; and Pallas at [42].

(5) In the end, the decision whether to adjourn is a discretionary decision for the court hearing the matter, which must be exercised judicially and will depend on the individual circumstances that are relevant: EPH17 at [18] [19]; Jarrett at [78].

15    The respondent opposed the application primarily on the basis that the applicant has had sufficient time to obtain representation. In doing so, the respondent referred inter alia to the fact that an applicant has no legal entitlement to representation, the role of the Court with an unrepresented party and the respondent’s role as a model litigant.

16    There is no evidence before the Court as to any steps taken by the applicant to obtain legal representation. The applicant explained that he had spoken to two lawyers (although it is unclear when this was said to have occurred in the history of the proceedings) and they were not prepared to act for him. I note that the applicant made a complaint about the interpreter(s) he had with him on those occasion. In that context, I ascertained that there was no issue with the interpreter who was assisting him with this hearing, to which he agreed.

17    In effect, the applicant wanted more time to attempt to find someone who would act for him. While it is understandable that an applicant would want representation, there is nothing in the applicant’s material or the submissions he made that provides any confidence that such representation could be arranged. This application has been on foot for some time. I note that the applicant was unrepresented in the FCC in a context where he informed this Court he wanted representation. Assuming the applicant has taken steps in the past to obtain representation, none has been obtained. There is little, if any, likelihood of the applicant being able to obtain representation if an adjournment were granted.

18    Therefore, there was no proper basis to adjourn the hearing of this matter, and the application was refused on that basis at the hearing.

Application for an extension of time

19    The power to extend time in which to appeal is unfettered, however, the authorities identify a number of matters bearing upon the exercise of the discretion to extend time. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-349, Wilcox J identified a number of factors which are often cited in this regard. The matters to which the Court will usually have regard to, identified in that judgment, are: (1) the length of the extension sought; (2) the explanation for the delay, including consideration of any action taken by the applicant, other than by way of making an application for review; (3) the prejudice to the applicant if the extension of time is refused; (4) any relevant prejudice to a respondent if the extension of time is granted; (5) the conduct of the parties in the litigation; (6) the merits of the substantive application; and (7) the interests of justice more generally: see for example, Parker v The Queen [2002] FCAFC 133 at [6] and [17] - [19] per Spender, O’Loughlin and Dowsett JJ.

20    In the context of an application for an extension of time and leave to appeal, the discretion to extend time in which to seek leave to appeal, together with the discretion to grant leave to appeal, “are both directed to ensuring that justice is done as between the parties”: SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 at [12] per Flick J. Common to both exercises of discretion is whether or not an applicant seeking an extension of time is seeking to advance a claim for relief which has some apparent merit: see for example, SZTBO v Minister for Immigration and Border Protection [2014] FCA 269 at [28] per Yates J; Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [39]-[48] per Wigney J.

21    The respondent, in opposing the extension accepted that the delay was relatively short, but highlighted Derrington J’s comments in BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3], about the importance of the Court Rules and that they are not “mere aspirational guidelines”. So much may be accepted. The respondent also submitted that the affidavit did not satisfactorily explain the delay, pointing out, amongst other things, many applicants in migration matters are unrepresented and yet they file within the time limits. Again, so much may be accepted, although it is important to be mindful of the difficulties faced by an unrepresented applicant. The respondent accepted that there was no prejudice to them if the extension of time were to be granted, beyond the cost of responding to an unmeritorious application and the public interest in the finality of decision making.

22    The important issue therefore is whether there is merit in the application, which in this case is whether there should be a grant of leave.

23    The discretion to grant leave to appeal is also an unfettered one, with each case being determined on its merits. Nonetheless, the discretion is informed by well-established principles including that generally an applicant must establish: (1) that, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant it being reconsidered; and (2) that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398-400 per Sheppard, Burchett and Heerey JJ; Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [44] per French J (as he then was) with Beaumont and Finkelstein JJ agreeing at [1] and [99]; Samsung Electronics Co. Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]-[30] per Dowsett, Foster and Yates JJ.

24    The respondent submits that the proposed application for leave has limited prospects of success and the applicant would not suffer substantial injustice if leave to appeal were refused.

25    The applicant made submissions as to why his appeal should be allowed. The argument appeared to be focussed on two matters: first, that the FCC should have listened to an audio recording of an interview with the applicant on Nauru concerning his claims for refugee status (the Nauru interview) because unless that is heard, the Court was not in the position to decide his application; and second, and somewhat inconsistently, that he had never fully explained his claim.

26    The applicant’s submissions addressed the merits of his claim and proceeded on the basis this Court could assess his claim and any new material he wanted to put.

27    However, the FCC could only have disturbed the decision of the Tribunal under review if that decision was infected by jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. This Court’s appellate function is to ascertain whether there is an error in the decision of the FCC.

28    As was explained to the applicant at the hearing, this is not a merits review. The issue is not whether this Court or the FCC agrees with the decision. This Court is not a forum in which a party may simply reargue the case in the hope of convincing a judge to take a different view of the evidence: DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262 at [21] per Derrington J citing SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 at [6]-[8] per Flick J and CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [13]-[14] per Gilmour J.

29    The grounds of appeal referred to above, while rather unclear, appear to relate to the Nauru interview, and the applicant appeared to accept that during the hearing. The issue in the FCC on that topic was whether any error had been established by reason of the fact that material was not forwarded to the Authority.

30    Given the nature of the ground it is appropriate to refer to the primary judge’s comments relevant to the interview in the factual background summary at [22] - [23] in the following terms (citations omitted):

22. In his Statutory Declaration, the applicant referred to the Nauru Interview and asserted that he was not made aware before or during the interview that the information he provided during that interview would be used for the purpose of assessing his protection claims. The applicant complained that, due to interpretation difficulties, he felt that he could not make himself properly understood at the Nauru Interview.

23. On 1 August 2017, the applicant’s migration agent sent a written submission to the delegate in support of the visa application. That submission relevantly:

a) stated that the applicant relied on the protection claims set out in the Statutory Declaration;

b) restated the protection claims set out in the Statutory Declaration;

c) referred to “country information”, rather than to the applicant’s particular case; and

d) contained no direct reference to the Nauru Interview Document.

31    It is significant that while the applicant now complains that the FCC is in error because the audio of the Nauru interview was not listened to, it is apparent that in his statutory declaration he complained about the interview being used in considering his claims. I note also that the applicant was interviewed by the delegate of the Minister prior to the refusal of his SHEV on 16 October 2017, and that interview was before the Authority. Further, while there was an opportunity for the applicant to put a submission to the Authority, he did not do so.

32    It was accepted by the respondent that the Nauru interview had not been transferred to the Authority.

33    The primary judge addressed the argument as follows:

107. In his oral submissions to the Court on 18 September 2019 (which, unfortunately, were very unclear and confusing – despite the best efforts of both the Court and Mr Lettenmaier to assist the applicant), the applicant attempted to identify materials that he believes the IAA “ignored” or should have looked at. He seemed to suggest that what had been discussed at his “interview” was not considered by the IAA.

108. It is unclear to the Court whether the applicant was suggesting that the audio of the Nauru Interview should have been sent to the IAA or whether the audio of his arrival interview should have been sent and referenced.

109. It is not disputed that neither were before the IAA. They did not form part of the “review material” provided to the IAA.

110. The question arising here from this omission was whether this was an error as per s.473CB of the Act.

111.In answering this question, the Minister had regard to the decision in BLA16 v Minister for Immigration & Border Protection [2019] FCA 748 (“BLA16”).

112. In relation to the Nauru Interview Document, while not on all fours with the circumstances in this case, the principles outlined in BLA16 in relation to s.473CB of the Act are applicable to the facts that arise here.

113. In BLA16, the Court considered whether the fact that the Secretary had not forwarded to the IAA an earlier statutory declaration accompanying an invalid application was a breach of s.473CB and material to the outcome.

114. The applicant in BLA16 argued that that the earlier statutory declaration was “self-evidently material” to the IAA’s review. The Court disagreed, holding that it was not an error for the Secretary not to refer the document to the IAA because:

a) the earlier statutory declaration was contained in a different departmental file which meant that it could not be said the Secretary was aware of the document (as it did not accompany the valid visa application);

b) at no time did the applicant in that case rely upon the earlier statutory declaration in support of the valid visa application;

c) the Secretary was entitled to proceed on the assumption that the applicant had and did include all of the claims for protection that he relied upon in making the valid visa application; and

d) the substance of the earlier statutory declaration was of a similar nature to the later statement of claims the applicant provided in support of the valid application.

115. Here, for similar reasons as those articulated in BLA16, there has been no breach of s.473CB of the Act in relation to the Nauru Interview Document because:

a) the Nauru Interview Document (which was not sent to the IAA) was a document that the applicant himself had questioned the reliability of and disavowed any reliance upon;

b) the Nauru Interview Document was contained in a different Department file (CF2012/183227) to the other materials before the delegate (BCC2016/2439782): Ms Tattersall’s 26 February Affidavit, p.9 and CB 80. Having expressly disavowed reliance on the Nauru Interview Document, it was reasonable for the Secretary not to have searched for it or sought to obtain it and proceed on the basis that all of the relevant protection claims were in the application as provided;

c) the substance of the Nauru Interview Document was, in effect, repeated with greater specificity in the statutory declaration that the applicant himself provided in support of the visa application. Hence, it cannot be said the failure to provide the Nauru Interview Document was material; and

d) the applicant was required to place before the IAA the claims and evidence that he wanted to be considered. He could have provided the Nauru Interview Document if he wished as his agent was provided a copy (Ms Tattersall’s 26 February 2019 Affidavit), but he clearly did not want the document considered and the Secretary ceded to this request.

116. To the extent that the applicant claims that an audio recording of his arrival interview should have been sent to the IAA and referenced, there was no audio available: Ms Tattersall’s 26 February 2019 Affidavit. The applicant was made aware of this. Hence, to the extent that there were matters in that interview that he wanted addressed, he was on notice that he should provide those to the IAA as the IAA could not have had the audio.

34    The applicant has not identified any error with that reasoning.

35    The primary judge referred to the relevant authority and gave a detailed consideration of the proposed ground in this case. There is no apparent error in that analysis.

36    As to the reference to procedural fairness in the grounds of appeal it is apparent from the reasons that the primary judge afforded the applicant every opportunity to present his case. The first hearing was adjourned when the Nauru interview was raised by the respondent, and whilst the applicant did not appear in the second hearing, when the matter finally proceeded to hearing of the reinstatement application, the reasons reflect that the primary judge gave careful consideration to all the written material before the Court and the applicant’s oral submission. I note that one of the listed hearings did not proceed due to the quality of the interpretation services provided.

37    There is no apparent error in the reasons of the primary judge.

38    There being no proper basis to grant leave to appeal, there is no proper basis to grant the extension of time.

Conclusion

39    The application for the extension of time in which to file the application is refused. If leave had been granted, leave to appeal would have been refused.

Associate:

Dated:    25 February 2020