Federal Court of Australia

CBM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 551

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant seeks an extension of time within which to apply for leave to appeal from a decision of the Federal Circuit Court of Australia (hereafter, the “FCCA”). In the event that such an extension is granted, he also seeks that leave to appeal. The decision in question concerned an application that he made to that court for judicial review of a migration decision made by the second respondent (hereafter, the “Tribunal”). By that decision (hereafter, the “Tribunal Decision”), the Tribunal affirmed a decision made by a delegate of the first respondent (hereafter, the “Minister”) to reject the applicant’s application for a protection visa under the Migration Act 1958 (Cth) (hereafter, the “Act”).

2    By the judgment below, the FCCA summarily dismissed the applicant’s judicial review application (hereafter, the “Judicial Review Application”). The applicant was ordered to pay the Minister’s costs. Ex tempore reasons were given for that dismissal and written reasons followed some time later: CBM19 v Minister for Immigration and Anor [2020] FCCA 2287 (hereafter, the “FCCA Judgment”; Judge Vasta).

3    The FCCA’s power to summarily dismiss the Judicial Review Application is not in doubt: Federal Circuit Court of Australia Act 1999 (Cth), s 17A. The FCCA Judgment, as an exercise of that power, was interlocutory in nature and, in order to appeal from it, the applicant requires the leave of this court: Federal Court of Australia Act 1976 (Cth), s 24(1A) and (1D). An application for such leave must be made within 14 days of the subject judgment: Federal Court Rules 2011, r 35.13(a). In the applicant’s case, that deadline expired on 6 August 2020. It was not until 31 August 2020 that the applicant filed the present matter in this court.

4    For the reasons that follow, the application must be dismissed with costs.

The legislative scheme

5    Section 36 of the Act stipulates criteria that must be satisfied in order that a visa applicant might be granted a “protection visa”. It relevantly provides (and, at the times material to this application, provided) as follows:

36 Protection visas—criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

…

(b)    at least one of the criteria in subsection (2).

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

…

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

…

6    By his delegate, the Minister declined to grant the applicant the protection visa for which he had applied. The delegate concluded that the applicant did not satisfy the criteria that he needed to satisfy in order to qualify for protection. It is not controversial that the Tribunal had jurisdiction to review that decision, nor that the FCCA had jurisdiction to review that review.

The Tribunal Decision and the FCCA Judgment

7    The applicant is an Indian national. He was granted a student visa, which, for reasons to which the court needn’t advert, was later cancelled. Despite that cancellation, the applicant has not returned to India. Instead, he made his application for a protection visa. At the core of that application lay an assertion that he is bisexual and, if returned to India, would be persecuted or otherwise subjected to harm, in each case sufficient to warrant the granting of protection in Australia.

8    The Tribunal rejected that narrative. It did not accept that the applicant is, in fact, bisexual. On the strength of that conclusion, it found that the applicant would not be subjected to relevant persecution or harm if returned to India and, therefore, could not satisfy the criteria upon which his visa application turned. It is not necessary to here rehearse the various intermediate findings that led the Tribunal to that ultimate conclusion.

9    The applicant applied to the FCCA for prerogative relief aimed at the Tribunal Decision. He advanced a number of contentions in support of that relief. Intending no disrespect, most of them were unintelligible. The FCCA concluded that, at the core of his application for judicial review was a contention that the Tribunal was wrong to decide his visa application in the way that it did. The FCCA concluded that the judicial review application was an effort to engage that court in a process of merits review. It found that the application did not raise an arguable case for the relief that was claimed.

The present application and the proposed appeal

10    Before this court, the applicant read a short affidavit in support of his application. It stated as follows (errors original):

1.    I was not aware of the time frame for appeal to higher court because of no paper work were issued by the second respondent.

2.    I would like to consider my application with oral arguments in upcoming sitting dates.

3.    The Federal Circuit Court of Australia failed to take in account the relevant consideration, and without considering the facts of my country’s report information.

4.    Grounds has been misinterpreted and could not reach properly to the Federal Circuit Court of Australia

11    As the court’s rules require, the applicant filed a draft notice of appeal that he intends to file in the event that his present application succeeds. That document articulates the grounds that he wishes to agitate on appeal. It is convenient to set them out in full (errors original):

1.    The Federal Circuit Court of Australia failed to take into account the relevant consideration, and without considering the facts of my country’s report information.

2.    Grounds has been misinterpreted and could not reach properly to the Federal Circuit Court of Australia.

12    Not long after the applicant’s application was filed, a registrar of the court made an array of procedural orders, by which (amongst other things) the parties were directed to file and serve outlines of submissions concerning the application. The Minister complied with that direction on 29 March 2021. The applicant did not file or serve any written submissions.

13    The application came before the court on 26 April 2021 via remote video conferencing facilities. The applicant appeared by video from his detention centre in Western Australia. He was assisted by a Punjabi interpreter. Regrettably and for reasons not known to the court, the interpreter was unavailable at the time that the hearing was scheduled to commence. It was not until nearly an hour after the scheduled hearing time that the interpreter was able to dial into the remote hearing. Throughout the course of the short hearing that then ensued, she laboured under some difficulty understanding the applicant and recounting to the court in English the submissions that he wished to make (a reality upon which the applicant himself had occasion to inform the court).

14    At the hearing on 26 April 2021, it quickly became apparent that the applicant was unable to prosecute his application. He indicated that had understood that efforts were still underway to secure for him pro bono legal representation; and that, until that occurred, he was unable to make the submissions that needed to be made on his behalf. That indication appeared to misalign with reality. Although the court had made some effort to obtain pro bono representation for the applicant, it had been to no avail and the applicant had been advised as much in March 2021. At the hearing on 26 April 2021, the applicant was informed that he was not entitled to pro bono counsel and that if he (or others on his behalf, including the court) had been unable to secure representation, it fell to him to prosecute the application. It was apparent that he was not in a position to do that on 26 April 2021.

15    Over the concise and polite objection of the Minister, the court treated the applicant’s indications as a request for an adjournment of the application, which was then granted. In light of the misapprehension under which the applicant laboured (namely, that efforts remained afoot to secure for him pro bono representation), the matter was adjourned for eight days. The applicant was informed that, in the event that he remained unrepresented at the rescheduled hearing, it was the expectation of the court that he would prosecute his application on his own behalf.

16    The matter was then adjourned administratively for an additional period on account of difficulties sourcing a Punjabi interpreter for the resumption of the hearing. It ultimately came on for hearing on Tuesday, 18 May 2021, again by remote video means. On that day, the applicant appeared from a courtroom in the court’s Western Australian registry. A Punjabi interpreter appeared in person with him (from Perth), and the hearing took place without any material interpretation difficulties. The applicant remained unrepresented.

17    At the commencement of the hearing, the applicant indicated that he was unsure what submissions he ought to make. In consequence, I made some attempt to explore with him why it was that he felt that the two proposed appeal grounds had merit. Appropriately, counsel for the Minister raised no objection to my doing so. The fruits of that exchange are summarised in the analysis below.

Principles to be applied

18    The considerations relevant to the exercise of the court’s discretion to grant an extension of time in cases such as the present are well established. In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 (Perram, Farrell and Perry JJ), the Full Court, at [20], listed them as follows:

(1)    An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

 (2)    The length of the delay is a relevant factor.

(3)    The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.

(4)    Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

(5)    The merits of the substantive appeal, if leave were granted, are properly to be taken into account.

19    Consideration of the merits of the substantive appeal, should an extension of time and leave to appeal be granted, does not require detailed analysis of the grounds upon which it is proposed that the appeal might proceed. It is sufficient that the Court form a “reasonably impressionistic” assessment of their prospects: DKX17 v Federal Circuit Court of Australia and Others (2019) 268 FCR 64, 81-82 [95] (Reeves, Rangiah and Bromwich JJ); MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478, [38] (Tracey, Perry and Charlesworth JJ).

20    The considerations relevant to the exercise of the Court’s discretion to grant leave to appeal are equally well-established. They include whether or not an appeal would have any reasonable prospects of success and whether the applicant would suffer substantial injustice if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-399 (Sheppard, Burchett and Heerey JJ); Iannuzzi v Commissioner of Taxation [2019] FCAFC 39, [3] (Kenny, Jagot and Banks-Smith JJ); and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the costs of the Cup of Tea Case) [2019] FCAFC 36, [2] (Flick, Reeves and O’Callaghan JJ).

The delay and the explanation for it

21    The applicant missed the deadline to apply for leave to appeal from the FCCA Judgment by 25 days. The Minister submits that such a delay “…is not insignificant in the context of the 14-day period within which the application was required to be made”. So much can be accepted. In BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400, [3] (Derrington J), this court noted:

…the time limits prescribed by the Court Rules are not mere aspirational guidelines. They are intended to mark out the period in which it is expected that any appeal might be lodged. Once that period expires without any appeal being lodged the parties are entitled to assume that the litigation is at an end and that they may move on with their affairs as defined by the judgment at first instance. The court should not readily disturb that established state of affairs.

22    Equally, though, a delay of 25 days is unlikely to visit material prejudice upon a respondent. The Minister, quite properly, accepts that there is no such prejudice in this case.

23    The applicant’s explanation for not commencing his application for leave within the time limit that the court’s rules identify is, with respect, not especially compelling. He maintains that he did not know about it because he was never provided with any “paper work”. Even assuming (as I do) that the applicant was unaware of the deadline, that, by itself, is not an adequate explanation for the delay: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500, [8] (Katzmann J).

24    By his affidavit, the applicant complained (or appeared to complain) that the Tribunal ought to have alerted him to the 14-day time limit that applied. It seems more likely than not that that complaint is aimed at the FCCA rather than the Tribunal. Regardless, it is not apparent why the FCCA or the Tribunal (or, for that matter, the Minister) ought to have informed the applicant of his appeal rights or the relevant deadline.

25    It may readily be accepted that the applicant did not know that he needed to file an application for leave to appeal within 14 days of the FCCA Judgment. The responsibility for educating himself to that end, though, was his. He ought to have taken appropriate steps to ensure that he could challenge the FCCA Judgment in a timely manner.

26    I do not consider that the applicant has a good explanation for the delay that has occasioned this application.

Merits of the proposed appeal

27    Again intending no disrespect, the proposed grounds of appeal (above, [11]) are difficult to comprehend. That difficulty largely survived the oral submissions that the applicant advanced at the hearing.

28    It is convenient to focus first on the first of the two proposed appeal grounds. Despite the court’s invitation, the applicant was not able to identify any particular relevant consideration of which he felt that the FCCA had failed to take account. Instead, he sought to rely on what he described as a psychologist’s report that he had recently secured. When asked to identify what it was that the court should make of that report, he indicated two things. First, he said that, because of his detention, he had not been able to secure the report prior to the hearing before the FCCA. Second, he indicated that he did not want to make any substantive submissions about the report in a public forum. Although invited to reconsider that position (and despite being told that it might be possible, later, to suppress the details of any such submission), the applicant opted not to elaborate. Instead, he maintained that it should be apparent to the court, upon reviewing the report, that the FCCA had erred in concluding, as it did, that his Judicial Review Application failed to raise an arguable case for the relief that was claimed.

29    Having undertaken to do so, I have read what the applicant provided. Although he described having produced a “psychologist’s report”, in truth what he produced was (or appeared to be) a series of typed clinical notes relating to consultations that he had with a psychologist and a mental health nurse over the period December 2020 to March 2021. Those notes record representations apparently made by the applicant, including (to a limited extent) about his past and about why it is that he maintains that it is not safe for him to return to India. Broadly, those representations accord with the narrative that he recounted to the AAT and, prior to that, to the Minister’s delegate.

30    With due respect to him, that material does not presently assist. There are at least two reasons for saying so. First, all of it post-dates the hearings that took place before the FCCA and the AAT. Neither of those institutions can be thought to have overlooked material that, at the time, did not exist. Second, the material that the applicant produced does not engage with the question presently relevant: namely, whether the FCCA might have erred by concluding that the applicant’s Judicial Review Application was nothing more than an invitation to review the Tribunal Decision on its merits and, therefore, failed to raise an arguable case. If anything, the applicant’s reliance upon the clinical notes tends to suggest that the FCCA’s stated concern was well-founded.

31    Insofar as concerned the second of his two proposed grounds, the applicant referred to the interpretation service that he was afforded during the hearing that took place before the FCCA. He explained that that hearing—which, it might be remembered, was an interlocutory hearing to consider whether his Judicial Review Application should be summarily dismissed for want of an arguable case—was conducted by telephone. A Punjabi interpreter was present on the call but, so the applicant maintained, laboured under some difficulty recounting in English the submissions that he advanced in Punjabi.

32    In its written reasons for dismissing the Judicial Review Application (which, I pause to note, appear on their face to reflect oral reasons that were given ex tempore), the FCCA made the following observations relevant to the standard of interpretation:

8.    The Applicant is in detention at the Yongah Hill Detention Centre and has been in detention for over two years. He is appearing by phone, and this hearing is being conducted by Global Team Meets, which is a phone application that has been used since March for all migration matters in my Court. The Applicant has been assisted by an interpreter, notwithstanding that he has a fairly good command of oral English.

9.    There had been problems in that he is in a confined space at Yongah Hill, and that he spoke somewhat loudly and excitedly at times. This caused an echo which sometimes hampered the interpreter in understanding what the Applicant had said, and there were a number of occasions where the interpreter had to clarify what it was that the Applicant was conveying to the Court.

10.    He told me that he needed a lawyer and that he feared that this application would not go well for him because he was speaking on the phone and he did not have a lawyer. I explained that I was listening to his matter, and that anything he said, I would be taking into consideration. He said to me on two occasions that, as he was making submissions, that he cannot explain on the phone. When I asked him why he could not explain on the phone, he simply replied, because he did not have a lawyer.

11.    I made special effort to monitor the situation at all times to ensure that the Court was treating the Applicant fairly. I explained to the Applicant that there is no right to a lawyer, and that if a law firm did not want to represent him, then that was nothing that the Court could do. I should say that apart from the bald assertions made in the emails that the Applicant sent, there was no other material before the Court, such as emails from these firms, explaining why it was that they could not assist him, but that is a peripheral matter.

12.    I went ahead with the matter because of the history of it, and the fact that the Applicant is in detention, and the matter simply needs to be heard now. The Applicant was able to give full submissions, and quite forcefully make his point as to why he believes that the AAT was in error.

33    There is no evidence before the court presently that might contextualise the submission that the applicant advanced. Invited to identify any submission that he had made to the FCCA that he was concerned might not have been properly interpreted, the applicant was unable to nominate anything. There might be obvious explanations for that but, regardless, it is very difficult—indeed, impossible—to make any judgment about the standard of interpretation that was provided before the FCCA, or about whether there might be any reason to doubt what the FCCA itself said about it.

34    In Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, Kenny J observed (at 18 [24]):

“The right to a hearing is a vain thing if the [applicant for refugee status] is not understood.”: Gonzales v Zurbrick (6th Cir 1930) 45 F 2d 934 at 937. In this country, the function of an interpreter in courts and tribunals is to convey in English what has been said in another language (and vice versa). The function of an interpreter in the Tribunal (as in a court) is to place the non-English speaker as nearly as possible in the same position as an English speaker. In other words, an interpreter serves to remove any barriers which prevent or impede understanding or communication: see Gradidge v Grace Bros Pty Ltd at 425 per Samuels JA. An interpreter provides the means for communication between the applicant, the Tribunal and other participants in the Tribunal hearing, in cases where the applicant’s own linguistic capacities are not, on their own, sufficient to that end.

35    In SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 (Allsop CJ, Flick and Robertson JJ), Allsop CJ observed in obiter (at 215-216 [9]-[10]):

The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair. Such may be expressed as requiring the appearance of a fair hearing...It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?

36    In the absence of some evidence about the degree to which the standard of interpretation before the FCCA might be thought to have been found wanting, the court is unable to make any assessment that that hearing was relevantly unfair or otherwise proceeded in a way that should attract some remedy on appeal.

37    That being so, attention must turn to the applicant’s other submissions (that is, the submissions that he made otherwise than about the standard of the interpretation service). The FCCA’s power to dismiss the applicant’s judicial review application was conditioned upon its satisfaction that the applicant lacked an arguable case for the relief that he claimed. Its decision was discretionary. In order that he might establish that the exercise of that discretion was attended by appellable error, the applicant would need to demonstrate that that exercise miscarried in any one or more of the ways famously essayed by the High Court in House v R (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).

38    The applicant did not assert that the FCCA Judgment was founded upon any error of the sort to which the High Court referred. With due respect to him, his proposed appeal grounds are without merit.

Conclusion

39    In light of what is set out above, I am not satisfied that it is in the interests of the administration of justice to grant the applicant an extension of time as he seeks. His explanation for the delay in challenging the FCCA Judgment is not compelling; and, although the prejudice that he will endure in the absence of an extension outweighs what the Minister will suffer if an extension is granted, the applicant’s prospects of succeeding in his challenge to the FCCA Judgment are very poor.

40    Had it been necessary to consider whether the applicant should have leave to appeal (as opposed to an extension of time within which to seek such leave), I would have declined to grant it on the basis that the proposed appeal lacks merit.

41    The application will be dismissed with the usual order as to costs.

Associate:

Dated:    26 May 2021