Federal Court of Australia

CWT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 588

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The application for an extension of time be dismissed.

3.    The applicant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    On 24 January 2020, the applicant filed an application seeking an extension of time in which to appeal a decision of the Federal Circuit Court of Australia made on 1 November 2018 in CWT17 v Minister for Immigration [2018] FCCA 4330.

2    The applicant is a citizen of Malaysia of Indian descent and was born in 1983. He arrived in Australia on 16 November 2015 and applied for a protection visa under s 65 of the Migration Act 1958 (Cth) (Act) on 2 February 2016. A delegate of the Minister refused to grant the visa on 18 March 2016. The Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision not to grant the applicant a protection visa on 13 June 2017.

3    The applicant applied for judicial review of the Tribunal’s decision under s 476 of the Act. On 1 November 2018, the Federal Circuit Court dismissed the application for review. At that time, the primary judge pronounced orders dismissing the application and gave ex tempore reasons for the decision. The applicant appeared in person before the Federal Circuit Court and was present when orders were pronounced. Following the filing of the application on 24 January 2020, a copy of the ex tempore reasons of the primary judge were produced on 21 February 2020. In his application for an extension of time, the applicant makes no complaint about the publication of the ex tempore reasons, and does not attribute his failure to file an appeal within the prescribed time to any delay in the publication of reasons.

4    In support of his application for an extension of time, the applicant filed an affidavit sworn by him on 24 January 2020. The applicant also filed a draft notice of appeal. The affidavit and draft notice of appeal are considered below.

5    On 24 February 2020, the Court made orders for the preparation of the application for hearing, including the filing and serving of relevant documents in a tender bundle. The Court also made an order requiring the applicant, no later than ten business days before the hearing, to file and serve a written outline of submissions upon which the applicant seeks to rely in support of the application, and in support of any appeal were the Court to grant an extension of time.

6    As a result of the COVID-19 pandemic, and the difficulty associated with the applicant attending a hearing using video facilities, the Court did not list the application for hearing during 2020.

7    On 20 April 2021, the Court made enquiries of the parties as to their availability in May 2021 for the hearing of the application. On 27 April 2021, the applicant responded by email requesting another 3 months on the basis that the applicant was “still waiting for my supporting letter from Malaysia”. The applicant did not otherwise identify or explain the letter he was purportedly seeking from Malaysia and how it was relevant to his application or proposed appeal.

8    On 30 April 2021, the application was listed for hearing on 27 May 2021 and the parties were notified of the listing.

9    The applicant failed to file written submissions by 13 May 2021 as required by the orders of the Court made on 24 February 2020. On 17 May 2021, the Court sent an email to the applicant requesting the applicant to file submissions in support of his application. On 23 May 2021, the applicant filed a bundle of documents which he sought to rely on at the hearing of the application. Those documents are considered below. One of the documents, bearing the date 27 May 2021, was a letter addressed to the Court in the nature of submissions.

10    At the hearing, the applicant appeared and made submissions.

11    For the reasons that follow, I dismiss the application for an extension of time.

Application for an extension of time

12    Rule 36.03 of the Federal Court Rules 2011 requires a notice of appeal to be filed and served within 21 days after the date when the orders were made or judgment was pronounced. Although rule 36.03(a) of the Rules was amended by the Federal Court Amendment (Court Administration and Other Measures) Rules 2019 to extend the time in which an appeal could be commenced from 21 to 28 days, the amendment only came into effect on 2 May 2019 and does not affect the present proceeding.

13    Accordingly, a notice of appeal should have been filed by 22 November 2018, being 21 days after the primary judge gave judgment on 1 November 2018. When the applicant filed his application for an extension of time on 24 January 2020, the applicant was more than a year out of time.

14    Under r 36.05, the Court may grant an extension of the time within which an appeal is to be filed. The principles applicable to the exercise of the Court’s discretion were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which were adopted by the Full Federal Court in Parker v R [2002] FCAFC 133 at [6]:

(1)    Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.

(2)    There must be some acceptable explanation for the delay.

(3)    Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension.

(4)    The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.

(5)    The merits of the substantial application are to be taken into account in considering whether an extension is to be granted.

15    Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9].

16    The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. Special circumstances often arise in immigration cases. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7]. This will be so particularly if the applicant is in immigration detention, requires the assistance of an interpreter and has limited knowledge of law and practice including the time for any appeal: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [14]; N1202/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 403; 68 ALD 21 at [12] (N1202/01A). Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront them may be a reason for not applying the time rule too strictly: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 FCR 441 at [5]. Nevertheless, the merits of the appeal will remain a relevant factor: N1202/01A at [13].

Tribunal decision

17    The Tribunal recorded the following claims that were made by the applicant to the Department of Immigration (Department) in support of his application for a protection visa (at [8]):

(a)    The applicant was born in Malaysia. He speaks Tamil and is a Hindu.

(b)    The applicant co-owned a phone shop in Malaysia with three Malay friends (the partners).

(c)    One of the partners tried to force the applicant out of the business because he was not “bumiputra” (native Malay).

(d)    The applicant was threatened and beaten badly by “Three Line people’” and although he made two reports to the police, they took no action. The “Three Line gangsters” found out about this and beat him very badly.

(e)    If the applicant went back to Malaysia the Three Line people would kill him. They are still searching for him. He sent his family to his relatives' house. He sought help from friends but they were scared to help him. As a result, he ran away to Melbourne.

(f)    The applicant could not relocate to another part of the country as the Three Line people had his details and a photograph and have a big “team” in Malaysia.

18    The Tribunal also recorded the additional evidence given by the applicant at the hearing (at [9]). Relevantly, the applicant added that:

(a)    The phone shop was based in Perak, Malaysia. The partners demanded that he convert to Islam in order to stay in the business which led to a business dispute.

(b)    The Three Line group became involved. The applicant claimed that it is an Islamic gangster group with government support. The applicant claimed that they threatened and assaulted him to force him to agree that he had no connection with the phone shop business. The applicant went to the police but received no support. The applicant therefore left the business and relocated to Kuala Lumpur.

(c)    The applicant bought a taxi business in Kuala Lumpur. The partners of the phone business contacted him again to obtain a signature on a document stating that he was not involved in their business. One day in Kuala Lumpur, some people stopped his taxi with their car, and threatened him with a knife. He went to the police and made a complaint. The police took a statement from him. He did not bring the statement with him to Australia as he was not aware of the need to bring documents.

(d)    After that, the applicant had a fear for his family so he went to Johor, which is closer to Singapore. One of his younger brothers lived there. Through him, the applicant went to Singapore for work in 2015. In 2015, he and his younger brother shared a car, and near the immigration checkpoint, his brother was stabbed, as the perpetrators, connected to the partners, thought that his brother was the applicant.

(e)    The applicant claims that he fears that he could be stabbed and killed and his wife and son would have no-one. He said that if Indians make a complaint to police, then they are not treated equally with others. He said that the police give priority to Muslims but discriminate against other people.

(f)    As a result, the applicant travelled to Australia.

19    The Tribunal did not accept the applicant’s primary claims (at [14] and [20]). The Tribunal stated at [14]:

The Tribunal is not satisfied that the applicant entered into a failed partnership with two ethnic Malays and that this partnership ended in conflict. The Tribunal is not satisfied that the other partners took advantage of the fact there was no written contract, and told him to leave the partnership unless he converted to Islam and became a bumiputra. The Tribunal is not satisfied that the partners sent gangsters from a group called "Three Line" to assault him and chase him away. The Tribunal is not satisfied that later, when he arrived in Kuala Lumpur, partners or their associates threatened him with a knife, or that they attacked and stabbed his brother in Johor.

20    The Tribunal gave two primary reasons for that conclusion. First, the Tribunal found the applicant’s evidence about his claims was vague and did not contain the kind of detail and explanation commensurate with the truth. For example, the applicant provided little detail of his connections with the partners he entered into a partnership with; provided no details of his interactions with them prior to the agreement; appeared to have “no idea” what he would get out of the investment; and could not convincingly explain why the partners continued to seek him out after they had extricated him from the business ([15]). Second, the applicant raised new claims at the Tribunal hearing which had not been raised before the Department. The applicant stated that his original application form had been completed by someone else and that he believed that he would be able to supplement the evidence at a hearing. The Tribunal considered that it was not credible that the applicant would have failed to mention matters that were central to his claim to fear harm. The Tribunal concluded that the new claims were added to bolster his refugee claim and were not credible ([17]-[18]).

21    The Tribunal also did not accept that Indian Malays are discriminated against by government officials, particularly police. The Tribunal cited and relied on country information that indicated Indian Malays were the third largest ethnic group in Malaysia and generally did not experience discrimination or violence on a day-to-day basis. The Tribunal was not satisfied that instances of discrimination the applicant may experience as an Indian Malay constituted serious harm ([21]-[22]).

22    The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for one of the reasons set out in the Act were he to return to Malaysia in the reasonably foreseeable future (at [24]). Nor was the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there would be a real risk of significant harm (at [29]).

23    It is relevant to note that the Tribunal did not expressly disbelieve that the applicant and his brother had been involved in threatening or violent incidents in Kuala Lumpur and Johor respectively. The Tribunal disbelieved the applicant’s account of the causes of those incidents.

Decision of the Federal Circuit Court

24    The submissions of the applicant before the Federal Circuit Court, as recorded in the primary judge’s reasons, largely reiterated the applicant’s claims and submissions to the Tribunal. As the primary judge concluded, the applicant’s submissions sought to have the Court conduct a merits review of the Tribunal decision (at [9], [11]). The primary judge found that the applicant had not demonstrated grounds for judicial review (at [19]).

Reasons for the delay in filing application for an extension of time

25    As noted above, the delay in seeking to appeal the decision of the Federal Circuit Court is very lengthy, being approximately 1 year and 2 months. Very good reason would need to be shown to grant an extension of time of that length: see Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; 177 ALR 491 at [16].

26    In the applicant’s affidavit filed with his application for an extension of time, the applicant deposed that he “had applied to reinstate his application for review again on 21 January 2020 for my case MLG1383/2017” because his representative from Milestone Education and Immigration Services Pty Ltd, which he had paid, did not appear to represent him at the original hearing. The applicant further deposed that “he did not have a lawyer even after I had seeked (sic) and paid for help” and that he was unrepresented at the original hearing and did not understand “all events at court”. The applicant deposed that his application for judicial review was not based on the “statement that I gave to the appointed lawyer” and that the applicant had “been cheated by the lawyer I appointed”. The applicant deposed that he had attached to the affidavit details of the “representative” that he had paid for, but no such details were in fact attached.

27    At the hearing, the applicant clarified that the application to “reinstate” his application for review was a reference to the application to this Court, made on 24 January 2020, for an extension of time in which to appeal.

28    The applicant’s draft notice of appeal contained a similar statement, as a ground of appeal, to the effect that the applicant had paid a lawyer from Milestone Education and Immigration Services Pty Ltd to represent him before the Federal Circuit Court but the lawyer had failed to appear and respond to the applicant’s calls.

29    There is no evidence that corroborates the applicant’s claim that he had arranged legal representation for his original hearing before the Federal Circuit Court. The applicant’s address for service on the Federal Circuit Court file was the applicant’s personal address. All of the documents filed in that proceeding on behalf of the applicant were filed by the applicant personally, including an affidavit sworn on the date of the hearing, 1 November 2018. That affidavit says nothing about the applicant having legal representation for the hearing, or that the applicant’s legal representative was unavailable for the hearing. To the contrary, the affidavit annexes a letter from the applicant in the nature of a submission dated 29 October 2018. The submission contradicts the applicant’s claim that he had arranged legal representation for the hearing. The submission stated:

I have had no legal support or I could not have a representative for this matter to be assisted at the Federal Circuit Court as I do not have access to the money to pay expensive lawyers or Solicitor. I wish I could have free legal advice to prepare this matter so that I could understand the process and procedure better. I have tried reaching out to people to seek help however have been refused.

30    The reasons of the primary judge make no reference to any submission by the applicant at the hearing that his legal representative (or any representative) had failed to attend the hearing.

31    At the hearing, I asked the applicant about the inconsistency between the statements in his affidavit and draft notice of appeal filed on 24 January 2020 about legal representation for the hearing before the Federal Circuit Court and the documentation filed in the Federal Circuit Court. The applicant acknowledged that he had not appointed a lawyer from Milestone Education and Immigration Services Pty Ltd to represent him, but that a migration agent had agreed to assist him but did not attend the hearing. That explanation was not entirely satisfactory, given the clear statements made by the applicant in his affidavit and draft notice of appeal filed on 24 January 2020 that he had appointed a lawyer to represent him before the Federal Circuit Court. Having regard to the foregoing matters, I am not satisfied that the applicant had arranged for any person to represent him, lawyer or otherwise, at the hearing in the Federal Circuit Court.

32    In any event, the applicant’s claim that a representative failed to attend at the hearing before the primary judge does not explain the failure by the applicant to file an appeal against the orders of the primary judge for more than a year. At the hearing, the applicant said that he knew that he had a limited time in which to file an appeal against the decision of the Federal Circuit Court (the applicant referred to a period of 28 days, although as noted above the applicable period at that time was 21 days). The applicant claimed that he tried to get assistance with the required papers, but was unable to obtain assistance. The applicant said that it was only a short time before filing the application in January 2020 that he received advice that he could prepare the papers himself.

33    The applicant’s explanation for his failure to file an appeal promptly after the judgment of the Federal Circuit Court is unsatisfactory. It is apparent from the application and affidavits filed by the applicant in the Federal Circuit Court that the applicant had some familiarity with court processes, and was aware that he could obtain some assistance or guidance from the Court itself. All of the applicant’s affidavits, filed in the Federal Circuit Court proceeding and in this proceeding, were witnessed by an officer of the Court. The applicant acknowledged that he was aware of the time limit to the filing of an appeal. In all the circumstances, I infer that the applicant made an election not to proceed with an appeal, but a subsequent event has caused the applicant to change his mind. While it remains necessary to consider the applicant’s proposed grounds of appeal, the extent of the delay and the unsatisfactory explanation for the delay weigh heavily against the grant of an extension.

The applicant’s proposed grounds of appeal

34    The applicant’s draft notice of appeal contains five grounds in the following terms (reproduced verbatim, save that capitalised font has been reproduced in lower case):

1.     The court finalised to dismiss my case after me attending for hearing date 1st Novemeber 2018 at 2:30pm before Judge Reithmuller’s order to dismiss and pay first respondent cost fixed sum $6000.00.

2.     I seeked reinstatement to my case but was refused on 21.01.2020 by Judge Reithmuller because the court has not have jurisdiction to reinstate a procedding after final hearing.

3.     For my court proceeding I had paid and appointed a lawyer from Milestone Education and Immigration Services Pty Ltd to represent me for my proceeding but he failed to appear for my final hearing and respond to my calls. I had no legal knowledge to present my argument and understand court terms.

4.     I was seeking for the assessment under 36(2)(a) and 36(2)(aa) of the Act to be made for my protection visa application because the delegate did not make an assessment under both that criteria.

5.     Therefore, the decisions made is unfair to me because I have a gneuine and sincere claims for my protection.

35    Proposed ground one merely records the primary judge’s decision.

36    Proposed ground two appears to have been included in error. As noted earlier, during the hearing the applicant confirmed that he had not made any application to the Federal Circuit Court on 21 January 2020 and that the reference to the “reinstatement” of his application was a reference to this application for an extension of time in which to appeal.

37    Proposed ground three commences with the assertion that the applicant had appointed a lawyer to represent him but the lawyer failed to appear at the hearing. For the reasons given earlier, I do not accept that the applicant had retained any person to represent him at the hearing before the primary judge. Even if that had occurred, I would not grant the applicant an extension of time of more than one year in which to appeal on that ground, even more so when there is no evidence that the circumstance was raised as an issue before the primary judge. In so far as proposed ground three involves a contention that the Federal Circuit Court erred in proceeding with the hearing while the applicant was self-represented, the contention must be rejected. It is well settled that, in civil proceedings such as these, the rules of procedural fairness do not extend to requiring the provision of legal representation: NSW v Canellis (1994) 181 CLR 309 at 329-330 per Mason CJ, Dawson, Toohey and McHugh JJ; Elliott v Australian Securities and Investments Commission (2004) 10 VR 369 at [162]-[164]; Australian Securities and Investments Commission v Reid (No 1) (2006) 151 FCR 540 at [21]; Foster v Australian Competition and Consumer Commission [2012] FCA 953 at [18]–[19]; SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244 at [30].

38    Proposed ground four is contradicted by the Tribunal’s reasons. As set out earlier, the Tribunal considered the applicant’s protection claims under both ss 36(2)(a) and 36(2)(aa) of the Act.

39    Proposed ground five does not identify jurisdictional error in the Tribunal’s decision or any error in the primary judge’s reasons.

40    In so far as proposed grounds four and five request the Court to consider again the applicant’s claims for a protection visa, and in that sense undertake a re-hearing of the application before the Tribunal, the Court does not have jurisdiction to do so.

41    At the hearing, the applicant submitted that he did not have sufficient time to prepare for his hearing before the Tribunal and, for that reason, he had not obtained police reports to corroborate his claims. The submission does not establish a basis for judicial review. As the Minister submitted, the period between the Minister refusing the protection visa and the Tribunal hearing was more than a year. While the applicant advanced the same submission before the primary judge (see at [17]), there was no evidence before the primary judge to substantiate a contention that documentary evidence was available to the applicant in proof of his claims but he had been denied an opportunity to adduce such evidence.

42    As noted earlier, on 23 May 2021 the applicant filed with the Court a number of documents which purport to be:

(a)    a police report of the Royal Malaysia Police dated 17 October 2014 recording an incident involving the applicant in Selangor (Kuala Lumpur) written in the Malay language, together with an English translation;

(b)    a police report of the Royal Malaysia Police dated 9 August 2015 recording an incident involving the applicant’s brother in Johor which occurred on 7 August 2015 written in the Malay language, together with an English translation;

(c)    a police report of the Royal Malaysia Police dated 9 May 2021 recording an incident involving the applicant’s brother in Perak which occurred on 23 April 2021 written in the Malay language, together with an English translation; and

(d)    a photograph of a car with what appears to be blood on the bonnet of the car and a photograph of a person appearing to be lying in a hospital bed.

43    On the same day (i.e. 23 May 2021), the applicant filed a letter, dated 27 May 2021, which reiterated the applicant’s claims for protection as advanced before the Tribunal. The letter also referred to the police report dated 9 May 2021 concerning the applicant’s brother in support of the applicant’s claim that he fears for his safety if returned to Malaysia.

44    At the hearing, I received the applicant’s letter as a submission, but I refused to admit the bundle of documents into evidence. The documents were not part of the evidentiary record before the Tribunal. As I do not accept that the applicant was denied procedural fairness in his hearing before the Tribunal, the documents are not relevant to any ground of appeal properly raised in this Court. Further and in any event, even if admitted (and accepted as authentic), the documents could only afford evidence of complaints made to the Malaysian police that the applicant was threatened in Kuala Lumpur in 2014 and his brother was the victim of physical violence in Johor in 2015 (and threatening behaviour in Kuala Lumpur in 2021). The applicant’s claims of a threatening and violent incident in 2014 and 2015 respectively were not expressly disbelieved by the Tribunal. The documents do not afford proof of the causes of those events.

45    For those reasons, I consider that the proposed appeal has no prospects of success.

Conclusion

46    In conclusion, the application for an extension of time in which to file an appeal against the decision of the Federal Circuit Court is dismissed with costs.

Associate:

Dated:    4 June 2021