Federal Court of Australia

BJM15 v Minister for Immigration and Border Protection [2021] FCA 786

ORDERS

THE COURT ORDERS THAT:

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

2.    The application for injunctive relief is dismissed.

3.    The applicant do pay the first respondent's costs of the proceedings to be assessed if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The applicant arrived in Australia by boat in 2012. He applied for a protection visa. The basis for his claim to protection as a refugee (as presently relevant) arises from an adverse encounter in which he says he was involved in a nightclub. He says that the encounter was with the son of a prominent Minister in the Sri Lankan government. He claims that after the nightclub incident, the Minister's son and his associates searched for him, made threats to his life and beat and threatened members of his family. He says that by reason of those events he will be identified if he is returned to Sri Lanka and is at risk of serious harm from associates of the son of the Minister and he will get no protection from the government because he is a Tamil. Part of his claim is that he was working in the nightclub as a cashier and the altercation occurred when a customer refused to pay his bill.

2    The protection visa application was refused in July 2013 by a delegate of the Minister. The applicant sought review by the Refugee Review Tribunal. In June 2015, the Tribunal affirmed the decision of the delegate. The applicant then sought review in the Federal Circuit Court on the basis of alleged jurisdictional error by the Tribunal. He was legally represented and advanced a single ground of review to the effect that the Tribunal failed to give proper, genuine and realistic consideration to the applicant's claim 'to fear harm as a result of a violent interaction with a Minister's son whilst working at a night club'.

3    The Circuit Court heard the applicant's review application in July 2017. In April 2018, the review application was dismissed: BJM15 v Minister for Immigration [2018] FCCA 894. On 29 April 2021, the applicant commenced an application in this Court for an extension of time in which to appeal from the decision of the Circuit Court. On any view, the extension sought is considerable.

4    On 6 July 2021, the applicant was informed by an officer of the Minister's department that it was planned to remove the applicant to Sri Lanka on 13 July 2021 under s 198(6) of the Migration Act 1958 (Cth). On that same day, the applicant with legal assistance brought an application for an injunction restraining his removal. Section 198(6) provides that an officer must remove from Australia as soon as practicable an unlawful non-citizen who is in the circumstances of the applicant.

5    Given the dependence of the claim to injunctive relief upon the merits of the application for an extension of time in which to appeal, it was proposed that the application for injunctive relief and the application for an extension of time be listed together for urgent hearing. Counsel for the applicant did not object to that course. The Minister accepts that if an extension of time is granted to bring an appeal to this Court, then the removal obligation does not apply and the applicant will not be removed pending the appeal. However, the Minister maintains that unless an entitlement to an extension of time is demonstrated then there is no legal right which could found an injunction and the application for injunctive relief should be dismissed. The applicant advanced no basis for the claim to injunctive relief other than the need to protect the subject matter of the appeal which the applicant seeks to bring in this Court. Therefore, the substantive issue to be determined is whether the applicant should be granted an extension of time. If that application is successful an injunction is not required and if the application fails there is no demonstrated basis for the injunction.

Outcome

6    For the following reasons, the application for an extension of time should be refused and consequently the application for injunctive relief should be dismissed. There should be an order for costs in favour of the Minister.

The decision by the Tribunal

7    The applicant was represented before the Tribunal. He gave evidence and presented materials to the Tribunal in support of his claims that included photographs said to have been taken in the nightclub. The photographs were provided to the Tribunal on a USB during the course of the hearing. The Tribunal recorded that the photographs were 'printed and discussed at hearing'.

8    The Tribunal's decision was notified to the applicant's representative on 15 June 2015.

9    The Tribunal found that the applicant was not a witness of truth concerning matters central to the applicant's claims, his reasons for travelling to Australia and his future fears: para 25. The Tribunal gave detailed reasons for that conclusion identifying inconsistencies in the applicant's account. It grouped its reasons concerning the inconsistencies into five aspects of the account given by the applicant. After having provided those reasons the Tribunal then dealt with a submission made on the applicant's behalf that the inconsistencies were minor and the central theme of his evidence was unchanging. The Tribunal dealt with that submission stating (para 43):

While the Tribunal accepts that the central theme of an altercation in a nightclub is unchanging, this does not allay the Tribunal's concerns in relation to the inconsistencies, which the Tribunal, considering as a whole, does not consider to be minor.

10    The Tribunal then made a finding concerning the photographs. The finding was the focus of the contentions advanced on behalf of the applicant on the present application. It was expressed in the following terms (para 44):

The Tribunal considered the photographs provided by the applicant on the USB (and printed). The Tribunal put to the applicant at hearing that the photos just show that he was in a nightclub, and asked whether the photos or other evidence showed that he worked in the club. Having regard to the credibility concerns, the Tribunal is not satisfied that the photos corroborate that the applicant worked in the club as claimed; although the Tribunal is prepared to accept that the applicant has been to the club, and may have had friends working in the club/he may have known the owner/ or assisted behind the bar in the club/ for photographs.

11    The Tribunal went on to summarise its findings by stating that the applicant 'is not a witness of truth and he has fabricated accounts of events, as well as claimed fears, upon which he has based his protection claims' (para 48).

12    The Tribunal rejected the claim by the applicant that he worked in the nightclub as claimed but accepted that he had been there and that he has friends who 'work/frequent' there (para 50). It did not accept that the claimed incident occurred or that the applicant was in hiding and forced to flee for his safety to Australia (para 50).

13    As to the finding about what is depicted in the photographs, on the present application the applicant adduced evidence of the following exchange that occurred before the Tribunal (being an extract from the recording of the proceedings that was said to relate to the photographs):

Tribunal:    But how does it prove you worked there?

Applicant:    This is the cashier point and I am in the cashier

…

Tribunal:    Even if I accept it and I don't know if I do but even if I accept that you worked in the nightclub it doesn't mean that the rest of the matters [are] true I have concerns about those I have not made up my mind.

14    It is to be noted that no part of the transcript of proceedings before the Tribunal was in evidence before the Circuit Court on subsequent review. The case in the Circuit Court was conducted on the basis of the contentions advanced by the applicant and the reasons of the Tribunal. Therefore, to the extent that the applicant intends to seek to rely upon the extract from the transcript in any appeal to this Court the applicant will need leave to adduce further evidence in the appeal. The principles to be applied on any such application were recently summarised in Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16] (Griffiths and White JJ). One matter that will bear upon the exercise of that discretion is that the transcript was evidence of which those acting for the applicant must have been aware and yet they did not seek to obtain and adduce the transcript in evidence before the Circuit Court.

The decision by the Circuit Court

15    The applicant was legally represented before the Circuit Court. As has been noted, he advanced a single ground of appeal to the effect that the Tribunal 'failed to give proper, genuine and realistic consideration of [his] claim to fear harm as a result of a violent interaction with a Minister's son whilst working at a night club'. The primary judge set out in some detail the steps involved in the argument advanced for the applicant. In summary, they were described by the primary judge in the following terms:

(1)    The applicant's claim to fear harm must be considered by the Tribunal in the context of the 'real chance' test which means that his fear is well-founded if there is a real chance of persecution even if there is a less than even chance of persecution occurring: at [33].

(2)    The Tribunal's assessment as to whether there is a well-founded fear must be based on probative material and not guesswork: at [35].

(3)    Contrary to the Tribunal's findings, the applicant gave consistent evidence about key aspects of his claim: at [36].

(4)    The applicant gave plausible explanations for alleged discrepancies in his evidence: at [37].

(5)    The Tribunal drew unfavourable inferences as to the applicant's credit from minor discrepancies that were inconsistent with the proper application of the real chance test: at [38].

(6)    The Tribunal failed to give any genuine or realistic consideration to corroborative evidence provided by the applicant: at [40].

(7)    Therefore, the Tribunal's adverse evidence was based upon supposition and contrary to the evidence of the applicant: at [41].

16    These matters were said to lead to the conclusion that there was a failure to give genuine and realistic consideration to the applicant's claims.

17    It can be seen that the case as advanced to the primary judge, at its highest, was a complaint about the way in which the Tribunal considered the applicant's claims. It was not contended that there was no consideration of the claim. Rather, the quality and character of the consideration was alleged to be insufficient to amount to a genuine and realistic consideration of the claim. In circumstances where the Tribunal's reasoning rested on its rejection of the credibility of the applicant's account by reference to five groups of inconsistencies in his account and those inconsistencies concerned the actual matters that were the basis for his claim to protection there were evident difficulties in the case as advanced for the applicant in the Circuit Court. It had the appearance of a complaint about the within jurisdiction exercise of the authority conferred upon the Tribunal to make factual findings, especially findings as to the credit of the applicant.

18    It is to be noted that the application for review in the Circuit Court was not one which was expressed in terms of illogicality or irrationality when it came to the credit findings. Nor was there any argument about the way in which corroborative evidence was treated in reaching the factual conclusions. The ground of review was to the effect that the consideration given was not 'proper, genuine or realistic'.

19    After setting out in some detail the nature of the case as advanced on review, the primary judge then summarised the case as put by the applicant in the following terms at [50]-[51]:

I understood the applicant's argument, in short, to be as follows. The applicant gave consistent evidence about the claimed nightclub incident. In some 'minor matters' where there was some discrepancy, he gave 'plausible explanations' for these. The Tribunal also found adversely to his credit in spite of corroborative evidence. This reveals the Tribunal did not give 'proper, genuine or realistic' consideration to his claims or evidence.

Unlike as in SZSHV, the current complaint about the Tribunal's decision is not necessarily that the Tribunal failed to take into account the claims made. Rather, the current complaint is that it was not open, on the evidence, to find adversely to the applicant's credit. This is because his account should have been believed, and his explanations and corroborative evidence should have been accepted.

20    The primary judge then dealt with the various aspects of the evidence that had been the subject of submissions and dealt with them by reference to a detailed schedule. Not surprisingly given the nature of the submissions, the reasons deal in detail with each of the five matters that the Tribunal relied upon to make its credibility finding concerning the applicant. The reasons given are thorough and take the form of stating and addressing each of the submissions advanced by the applicant. No criticism is made of any of this reasoning by the primary judge.

21    Then, having dealt with and rejected all of the submissions as to the credibility findings, the primary judge then said at [85]-[88]:

Three, the applicant also complained that the Tribunal failed to give 'proper, genuine and realistic' consideration to the applicant's claim, with reference to photographs provided by the applicant to the Tribunal which he claimed depicted him working at the nightclub (see CB 169 to CB 180).

Before the Court, it was not clear whether the applicant's argument here was an assertion of a failure to give proper consideration, or that the Tribunal's ultimate treatment of the photographs was illogical or irrational, or even both.

The applicant's complaint is that the Tribunal accepted that the photographs supported the applicant's claims to have 'been to the club' and 'may have had friends working in the club/he may have known the owner/or assisted behind the bar in the cub/for photographs' ([44] at CB 209 and see [21]c. of the applicant's written submissions).

However, as with the other complaints made by the applicant, it was open, in the circumstances for the Tribunal to find that the photographs did not establish that the applicant actually worked the nightclub as he had claimed. Again, this complaint is a request for impermissible merits review.

22    These reasons are addressed to the finding about the photographs at para 44 of the Tribunal's reasons (quoted above). As has been explained, the Tribunal dealt with that evidence after having reached a conclusion that the applicant was not a witness of truth. The reasoning at para 44 is to the effect that the photographs were not corroborative of the applicant's account that he worked in the nightclub. Reasoning in part by reference to the credibility concerns that had been identified, the Tribunal concluded that it was not satisfied that the photographs were corroborative of the claim that the applicant worked at the nightclub. The Tribunal did not simply reject any consideration of the corroborative material. Rather, it considered the photographs in the context of the credibility concerns it had identified.

23    Given the nature of the review ground, the confusion on the part of the primary judge as to the nature of the case being advanced on review about the findings by the Tribunal at para 44 concerning the photographs is understandable. Plainly, the Tribunal had given consideration to the point and had reached an express factual conclusion about what the photographs depicted. It was not an instance of a failure to give proper consideration to the significance of the photographs for the applicant's claim.

24    As will emerge, the submissions advanced in support of the application for an extension of time focussed upon this aspect of the reasoning of the primary judge which concerned para 44. The submissions as developed orally on the present application had the character of a complaint based upon illogicality or irrationality rather than a complaint that there had been a failure to properly consider a claim. It seems that a similar type of submission may have been advanced to the primary judge as to para 44 but only in the context of the overall ground of appeal.

25    What is significant to observe at this point is that the complaint about the reasoning by the primary judge concerning the Tribunal's reasoning in para 44 as to what could be concluded from the photographs was just part of an overall attempt to complain about the credibility findings made by the Tribunal. The characterisation of the Tribunal's reasons as based upon 'supposition' was a submission made concerning the overall reasoning process as to the applicant's credibility. There was no suggestion that the finding about whether the applicant worked at the nightclub was critical or that the photographs permitted no rational conclusion other than a finding that the applicant worked at the nightclub as a cashier (such that a factual error about that finding of itself may amount to a failure to consider the whole of the applicant's claim), a matter now contended on behalf of the applicant.

26    There was no complaint based upon the quality of the photographs considered by the Tribunal (being a matter intimated as being part of the applicant's concern at certain points in the submissions on the present application). There was no ground of review to the effect that the photographs depicted the applicant as being at the cashier point in the nightclub and therefore the photographs could only be viewed as corroborative of the applicant's account (a point now made). There was no complaint that the Tribunal failed to put to the applicant the view that the photographs did not support his claim that he worked at the night club or any other complaint about the fairness of the Tribunal's procedure (being a matter now raised). There was no complaint about the approach to the possible corroborative character of the evidence. The case advanced was that there was no proper, genuine or realistic consideration given to the claims made by the applicant as to why he was at risk of serious harm.

Evidence in support of the application for an extension of time

27    The applicant relies on a number of affidavits on the application for an extension of time. He also relies upon the record as disclosed in an application book that has been prepared and filed by the Minister. Certain screen shots from the applicant's mobile phone identifying dates on which he had sent emails seeking legal assistance were also received into evidence on the application. Finally, as indicated, he relies upon an extract from the record of proceedings before the Tribunal.

Chronology of events since the Circuit Court decision

28    In his brief affidavit filed with the application for an extension of time, the applicant deposed that he does not have a lawyer and that he is trying to get a lawyer to help his case (a position that had changed by the time of filing of the application for an injunction).

29    The application for an extension of time that was lodged reflects the fact that it was prepared without the benefit of legal assistance and is expressed in the following terms:

no one notify me that I been dismissed on federal circuit court.

When I came to immigration detention centre then I was find out my case been dismissed on federal circuit court.

When I was out side I do have a lawyer. Even he not tell me or email me that I been dismissed on federal circuit court.

The federal circuit court not notify me the FCC decision.

When I came to detention centre I call my lawyer and I ask him what happened my case he just inform me now I been dismissed on FCC.

I am under mental presser.

I do have some evidence regarding to my protection visa claim. I would like to hear this case on Federal Court.

The FCC identified a wrong issue.

The FCC disregarded relevant material.

The FCC applied an incorrect interpretation and or application of the fact of the application law.

The FCC made wrong interpretation of the law.

I would like to hear this case on federal court.

I don't have lawyer this application but will get lawyer for this case hearing on federal court.

30    In a further affidavit the applicant deposed that his lawyer who acted for him in the Circuit Court proceedings told him that when the decision was made by the Circuit Court 'I will let you know'. He said that he then suffered mental health problems and had a drug induced psychosis which caused him to get 'in trouble' and 'was sentenced to six months imprisonment and seven months parole'. After serving his term of imprisonment he was released into immigration detention which is when he says he found out that his Circuit Court case had been refused in 2018.

31    He said that he contacted the Refugee Advice & Casework Service to try and help because he did not have enough money to pay a lawyer to appeal.

32    The applicant then described how he was taken back into prison for failing to report according to the terms of his parole but when his circumstances were explained he was sent back to immigration detention in July 2020.

33    He then says that he obtained his file and contacted Mr Taylor (his lawyer on the present application). He says that 'Mr Taylor advised that he could not see any grounds for the appeal at that particular time'.

34    He then said: 'I contacted other lawyers but nobody would take my case because they all thought it was too late because the case was dismissed in 2018'. He said that he worked on his case with his sister and identified some points 'and I lodged the case myself'.

35    The applicant also produced photographs which were said to be better copies compared to the photographs that were included in the court book before the primary judge in the Circuit Court. He described what was depicted in the photographs. He said that they showed him behind the bar and in one instance showed 'Me centre-left of photo behind the bar counter managing the cash counter'.

36    The following chronology emerges from the evidence:

(1)    On 18 July 2017, the applicant's review application was heard by the primary judge.

(2)    On 16 April 2018, the Circuit Court published its decision rejecting the applicant's review application.

(3)    Some time prior to July 2020 (being the date when the applicant was taken back into immigration detention) the applicant knew of the outcome of the Circuit Court decision and contacted the Refugee Advice & Casework Service when he was first taken into immigration detention.

(4)    On 18 September 2020, an officer of the Circuit Court responded to a request from the applicant for a copy of the decision in his case. The response noted that it appeared that he was seeking a copy of the judgment handed down by the Circuit Court on 16 April 2018 and provided a link to where the judgment may be accessed online.

(5)    At about this time, Mr Taylor advised that he could not see any grounds of review.

(6)    On 1 October 2020, the applicant sent an email to 'rights2asylum' with his file and a copy of the decision of the Circuit Court.

(7)    On 8 April 2021, the applicant sent material to Legal Aid New South Wales.

(8)    On 29 April 2021, the applicant filed his application for an extension of time.

(9)    On 1 July 2021, Mr Taylor again discussed the applicant's case with him and he agreed to act for the applicant.

Principles to be applied on application for extension of time

37    There are authorities concerned with the extension of time in which to seek remedies in the exercise of this Court's original jurisdiction (such as review for jurisdictional error) in respect of a migration decision, being a matter to which s 477A of the Migration Act applies. However, we are not here concerned with whether it is necessary in the interests of justice for the applicant to have access to that important review jurisdiction (which concerns the observance of the limits on the exercise of statutory power). Rather, in the present case, the applicant has had the benefit of access to such a review jurisdiction in the form of the application to the Circuit Court. The issue here is whether an extension of time should be granted to allow the applicant to pursue a statutory right of appeal a number of years after the decision of the primary judge was made. It is a determination to be made recognising the importance of finality in respect of judicial decisions and the important role that the observance of time limits has in maintaining the finality of judicial determinations.

38    The principles to be applied when considering an application for an extension of time in which to appeal are well known. They were summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 in terms that were adopted by the Full Court in Parker v The Queen [2002] FCAFC 133 at [6]. They were adopted as being applicable in a migration case in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]. They are as follows

(a)    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.

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

(c)    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.

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

(e)    The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal … 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'.

(f)    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 … 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 … Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront him or her may be a reason for not applying the time rule too strictly … Nevertheless, the merits of the appeal will remain a relevant factor …

(citations omitted)

39    As to para (f) which is specifically concerned with migration cases, it may be noted that it contemplates instances where the delay and the applicant is hampered by matters of the kind described. It contemplates instances where delay is short and no injustice will be done to the respondent. Even so, merits will remain a relevant factor.

40    The proposition by Gyles J in Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 to the effect that there is a significant public interest in the timely and effective disposal of litigation and delays in dealing with applications for protection visas are to be avoided if possible was applied in BQQ15 at [37]. The same passage has been applied in other decisions, particularly where leave is sought to raise a ground of appeal not advanced before the primary judge: see, for example, Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [89]-[92] (Flick and Rangiah JJ). In the context of applications for prerogative writs it has been observed that there is a public interest that there be an end to litigation about any particular exercise of administrative power: Re Commonwealth of Australia (Department of Defence); Ex parte Marks [2000] HCA 67 at [15].

41    In the case of an extraordinary delay an order extending time under s 477A(2) would only be in the interests of justice if the case was demonstrated to be 'exceptional': see the authorities summarised recently by Derrington J in WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [30]. All the more so where, as here, the applicant has been afforded the right of review and seeks an extension of time of a number of years in which to bring an appeal.

42    Finally, in all instances it must be borne in mind that the overriding principle is that the power to extend time be exercised in the interests of justice. Each case must be adjudged by reference to its particular circumstances. The matters identified in the cases that have been mentioned provide important guidance as to the general approach but it is the interests of justice in the particular case that are to be adjudged.

The merits of the proposed grounds of review

43    In the context of an application for an extension of time under s 477(2), it has been determined that any evaluation of the merits of the grounds should be undertaken at a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]); see also CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57 at [19]. As has been noted, in such cases an applicant seeks an extension of time in which to review whether administrative action exceeds the bounds of statutory authority. There is a public interest in finality in administrative decision making, but its importance is a matter to be adjudged with other considerations when an application is brought to enlarge the time under s 477(2). In such instances, there is a countervailing public interest in ensuring that the limits of statutory authority are not exceeded: ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25] (see below). However, cases of that kind are different to a case like the present where an applicant has been afforded that opportunity and seeks leave to appeal out of time. Finality is a fundamental attribute of judicial decision-making and appeals are the principal qualification to that finality: Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at [15]. Applications for an extension of time in which to appeal should be considered in the context of an understanding of the nature of the exercise of judicial power and the finality with which it speaks.

44    Recently, in NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [31] the language of evaluation of the merits at an impressionistic level (as expressed in MZABP) was applied by analogy in the case of an application for leave to appeal. However, in this Court, the formulation as expressed by Wilcox J in Hunter Valley Developments v Cohen has been repeatedly approved and applied. It is to the effect that the merits of the substantive appeal, if leave were granted, are properly to be taken into account, but the merits are not to be considered in detail and are to be assessed in a rough and ready way.

45    The terminology 'rough and ready' is echoed in Jackamarra v Krakouer (1998) 195 CLR 516. In that case the merits that must be demonstrated to support an enlargement of time that is needed in order to allow an appeal to proceed were considered, but that was an unusual case. An appeal had been commenced in time, but had not been entered for hearing within time. The Full Court below had applied the authorities in that Court concerned with an extension of time in which to appeal which required consideration as to whether there was an arguable case (together with other factors): at [5]. The case was conducted before the High Court on the basis that those principles applied: at [8]. In that context, Brennan CJ and McHugh J observed at [9]:

One reason that an appellate court does not go into 'much detail on the merits' in considering whether the time for an appeal should be extended is because ordinarily it only has 'limited materials and argument'. Unless motions to extend time for appeals are to turn into full rehearsals for those appeals, appellate courts can only assess 'the merits' in a fairly rough and ready way. In most cases, that assessment will be made from the statement of the applicant's case rather than from the opposing arguments or any detailed examination of the proofs of the argument. The merits are merely one of the factors that must be considered in determining whether the discretion to extend time should be exercised. No doubt there will be cases - this was obviously one - where instinctively the court feels that, given the apparent strength of the judgment under appeal, the arguments supporting the appeal will fail. In that case, however, an appellate court needs to remind itself 'that one story is good until another is told' and that, if the court is inclined to act on the apparent strength of the judgment, the applicant for an extension of time should have a full opportunity to tell his or her story in rebuttal of the judgment. The court needs to remind itself also that the parties do not expect to argue the merits issue as elaborately as if they were arguing the appeal itself.

(footnotes omitted)

46    Therefore, the degree to which there is a close consideration of the merits depends on the circumstances. In a case like the present, the materials to be considered are relatively confined, the grounds sought to be advanced focus upon a single paragraph in the reasons and the delay is considerable. Even taking account of the fact that the matter was brought on with urgency, the unusual circumstances mean that there must be some measure of satisfaction that there is merit in the appeal, especially given the delay.

47    In the present case, the extension of time is sought to raise two grounds of appeal. They are expressed in the following terms (omitting particulars):

The Circuit Court, and the Tribunal, failed to give 'proper, genuine and realistic' consideration to the applicant's claim, or otherwise failed to afford procedural fairness, with reference to photographs provided by the applicant to the Tribunal which he claimed depicted him working at the nightclub.

The Tribunal failed to give 'proper, genuine and realistic' consideration to the applicant's claims.

48    The second ground was said to be a claim, in effect, that the primary judge erred in failing to accept the claims advanced before the primary judge. The particulars to the ground simply repeat the matters advanced to the primary judge. There is no articulation of alleged error by the primary judge. In that respect the second ground is plainly deficient and demonstrates no arguable basis for an appeal.

49    As to the first ground, one difficulty is that it is expressed in terms of a complaint about the Circuit Court as well as a complaint about the Tribunal without distinguishing between what is required to demonstrate error on appeal from what may be a ground of review. The particulars to the first ground are expressed in terms of ten complaints about the Tribunal's reasoning and conclude with a final particular in the following terms:

The Circuit Court erred in finding that it was open to find that the photographs did not establish that the applicant actually worked in the nightclub as he claimed [at 88].

50    It is this last paragraph that is the only articulation of alleged error by the primary judge. It takes the form of a complaint that might be made where factual error is alleged in an appeal against the factual finding of a primary judge. However, it appears to be intended to specify a complaint to the effect that there was no basis, perhaps no rational basis, for the finding. That is certainly the terms in which it was put in the course of oral submissions.

51    The earlier particulars are in the following terms:

i    The applicant working at the Night Club was a fundamental underlying integer of the applicant's claims, and a ground of the migration application.

ii.    The finding that the applicant was not working at the night club was necessarily fatal to all of the applicant's claims.

iii.    The Tribunal considered the photographs at 44 and found:

The Tribunal considered the photographs provided by the applicant on the USB (and printed). The Tribunal put to the applicant at hearing that the photos just show that he was in a nightclub and asked whether the photos or other evidence showed that he worked in the club. Having regard to the credibility concerns, the Tribunal is not satisfied that the photos corroborate that the applicant worked in the club as claimed; although the Tribunal is prepared to accept that the applicant has been to the club, and may have had friends working in the club/he may have known the owner/ or assisted behind the bar in the club/ for photographs.

iv.    The photographs reproduced in the Court Book before the Circuit Court were of such reduced quality that information in the photographs which showed that the applicant was in fact working was stripped out.

v.    It was not available to the Tribunal to find that the photographs only showed that the applicant had 'been to the club, and may have had friends working in the club he may have known the owner or assisted behind the bar in the club for photographs.'

vi.    The finding that he may have assisted behind the bar 'for photographs' is unsustainable given that the applicant is clearly shown to be working at the cashier.

vii.    The Tribunal did not afford procedural fairness:

a.    The Tribunal did not put to the applicant that the photograph of him standing behind the bar counter and working the cashier just showed him assisting 'for photographs'.

viii.    The concern that he got behind the bar 'for photographs' was plainly speculation on the part of the Tribunal, building an alternative narrative unsupported by evidence in order to conform with its other concerns.

ix.    The Tribunal did not note that the photograph showed the applicant working the cashier, as claimed.

x.    The Tribunal was required to afford the benefit of the doubt in this respect on this integer of the applicant's claims.

52    In the course of oral argument, counsel for the applicant was invited to articulate the nature of the ground. Putting to one side the deficiencies in the way the ground is expressed, the error as articulated in oral submissions was expressed as a complaint about the reasoning in para 44 (quoted above) and was formulated as a failure by the primary judge to uphold the review application on that basis. It was submitted that the primary judge should have found that the only available inference from the photographs was that the applicant worked as a cashier at the nightclub and that it was pure conjecture for the Tribunal to conclude that the applicant might have gone behind the bar for photographs. Further, it was said that it was not put to the applicant that he went behind the bar for photographs. Indeed, on the basis of an extract of the transcript (now available) it was submitted that when it was put to him that the photographs did not prove that he worked at the nightclub, the applicant responded 'This is the cashier point and I am in the cashier'. It was then said that the evidence of the photographs could only have been used to conclude that the applicant worked at the nightclub and that was evidence that should have been brought to account in considering the credibility of his account.

53    In addition there were some submissions to the effect that the quality of the photographs before the primary judge meant that what was said to be the clear depiction of the applicant working as a cashier was not apparent. This submission exposed the fact that a point of the kind now being sought to be advanced was not that which was pressed before the primary judge. It is apparent from the terms of the reasons of the Tribunal that the photographs were examined in the form in which they were provided on the USB. There is no evidence to suggest that the quality of the photographs considered by the Tribunal was inferior in any respect. It was entirely a matter for the applicant (and his legal representatives) as to the quality of the photographs that were made available to the primary judge. For those reasons there is no merit in the complaints raised that adverted to an issue concerning the quality of the photographs.

54    In my view, a case of the kind that the applicant now articulates was not advanced before the primary judge. It is not a complaint about whether the consideration given to a claim was not proper, genuine or realistic. It is a complaint about the logicality of the Tribunal's reasoning as to what was depicted in the photographs and a complaint about the fairness of the procedure whereby the Tribunal reached that conclusion without putting its view about what was depicted in the photographs to the applicant. It is a claim that the evidence was critical to the applicant's case and therefore the error is foundational. It is a new case in respect of which leave would be required on any appeal. I do not accept the submission that it is a case of a kind that was advanced before the primary judge.

55    Confronted with the possibility that the complaint as articulated may go beyond the case advanced before the primary judge, counsel maintained in the alternative that there should be leave to allow the complaint to be run on appeal. To do so was to allege constructive error by the primary judge in failing to uphold an argument not presented to the primary judge. This created a compound difficulty for the applicant in that, on such an alternative he seeks not only an extension of time but also leave to advance a new argument not advanced to the primary judge. The authorities indicate a different approach to merit where a new argument is sought to be raised for the first time on appeal.

56    As to leave to rely upon a ground that had not been raised before the primary judge, there are additional considerations to be borne in mind: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48]. In that context, the Court indicated that leave may be granted where a point 'clearly has merit' and there is no real prejudice to the respondent in permitting it to be agitated. However, as was observed in CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 at [36]: 'There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant'. The approach in CGA15 was followed in Fualau v Minister for Home Affairs [2020] FCAFC 11 where the following statement by Mortimer J in ARK16 at [25] was quoted with apparent approval:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

57    After quoting the above passage, the Court in Fualau then said at [17] (Murphy, Davies and O'Bryan JJ):

This does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to decide whether the proposed new appeal ground has a reasonable prospect of success.

58    In addition, to allow a new argument to be advanced on appeal tends to reduce the proceedings at first instance to a preliminary skirmish and tends to undermine the due administration of justice which requires that the substantial issues between the parties are ordinarily settled at trial: Coulton v Holcombe (1986) 162 CLR 1 at 7. It also deprives the respondent of a right to appeal in respect of the consideration of the issue because any further appeal is only available with leave. These are significant matters to be brought to account in deciding whether to grant leave.

59    There was no attempt to explain why the argument as now articulated was not advanced before the primary judge. It was also a point that was sought to be supported by new evidence. As has been noted, there has been a considerable delay. As was stated by Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 at [8]-[9] (in a passage quoted with approval in Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90; (2020) 276 FCR 516 at [43]; and also in MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [90]):

It may be convenient, and in many cases it will be entirely appropriate, to decide the question of whether to grant leave to advance an entirely new proposed ground of review in the form of a ground of appeal by giving dominant, but not exclusive, weight to the merit of the proposed ground. Merit is necessary, but not of itself ordinarily sufficient. Other features will generally need to be absent or present. Possible further considerations for the granting of leave in addition to merit include such things as an acceptable explanation for the ground not being run below, the nature and extent of any injustice (beyond a merely adverse result) that may result if the issue raised is not addressed, and the lack of prejudice to the opposing party. The decision to grant or refuse leave is then made by weighing the competing considerations, which are sometimes finely balanced.

The approach of relying predominantly on merit as the basis for leave becomes more problematic when there is no adequate explanation for the ground not having been advanced at the trial in the court below and other circumstances also tell against leave being granted. Care needs to be taken to ensure that a focus on merit does not have the troubling practical effect that a new ground sought to be raised is effectively heard and determined by this Court in the exercise of its appellate jurisdiction as though leave was not required. If that happens, the appellant may get to run an appeal which in truth is a new trial upon nothing more compelling than the fact that it might have succeeded if it had been run below. If the argument in support of the proposed ground finds favour, leave is then granted, and the appeal is allowed. If the argument does not find favour, leave is refused and the appeal dismissed. The grant or refusal of leave then turns on the success or failure of the new ground, making leave a mere formality. If so, an important principle in the administration of justice may be lost in the process.

60    As has been noted, the nature of the jurisdictional error now sought to be alleged is properly characterised as a claim of illogicality in reasoning. This was not an instance where it was contended that there was an error of fact that led the Tribunal to misunderstand or misconstrue a claim that was being advanced: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1. Nor is it a case where the Tribunal was alleged to have failed to consider a substantial, clearly articulated argument in the sense often traced back to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26. The Tribunal engaged with the basis for the claim to protection. It dealt squarely with the claims as to what occurred at the nightclub and rejected them based upon reasoning as to the lack of credibility of the applicant's account.

61    The requisite degree of extreme illogicality required to be demonstrated in order to establish jurisdictional error is to be 'measured against the standard that it is not enough for the question of fact to be one on which reasonable minds might come to different conclusions': CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [60] (McKerracher, Griffiths and Rangiah JJ); and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30] (Kenny, Kerr and Perry JJ). Even emphatic disagreement with the reasoning of the Tribunal is not sufficient to demonstrate illogicality: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [124], [129] (Crennan and Bell JJ). The test is not how firmly the Court on review might regard a different conclusion on the facts to be the preferable conclusion to reach. Rather, the question is whether the reasoning lacks the quality of rationality that decision-makers like the Tribunal are expected to observe as an incident of the nature of the independent review that may be expected of a member of a tribunal with the legislated attributes and procedures of the Tribunal. It follows that illogicality in the requisite sense is difficult to demonstrate where the decision-maker has statutory authority to determine the facts.

62    The Tribunal made a factual finding and, if an extension of time were granted and leave were given to raise the new ground, a judicial determination would need to be made as to whether it lacked the required quality of rationality and it was of such significance to the reasoning of the Tribunal that it meant that the reasoning was illogical or irrational.

63    As to other aspects of the proposed ground one, the Tribunal did raise its concern as to what was established by the photographs with the applicant and he provided his response. Therefore, that aspect of the claim lacks merit. There is no relevant principle to the effect that the Tribunal was required to afford the applicant the benefit of the doubt in respect of his claim that he worked as a cashier at the nightclub, or his claim more generally. To the extent that the issue was whether there was a risk of harm that was a matter to be evaluated once the Tribunal was persuaded as to the facts which were said to give rise to that risk of harm. The Tribunal was required to be affirmatively persuaded as to those facts.

64    Although it may be accepted that the appeal ground that the applicant now seeks to advance would not be properly characterised as lacking merit or being without merit, it is a claim that has difficulties because of the nature of the error in reasoning that must be established in order for the applicant to succeed. I would characterise the proposed appeal ground as arguable. I would not characterise the claim as strong or having obvious merit. I would not describe it as having reasonable prospects of success. That is because the question of what may be deduced from the photographs in the context of the evidence of the applicant as a whole (and the inconsistencies identified by the Tribunal) is fundamentally a decision of the kind that falls within the jurisdiction of the Tribunal.

Application for an extension of time should be refused

65    The only explanation as to why the applicant did not take any steps between April 2018 and the point prior to July when he became aware of the Circuit Court decision is his evidence that his lawyer did not tell him of the outcome. The fact that the applicant was taking steps after July to obtain a copy of the decision in his case provides some support for that version of events. However, even accepting it to be correct (and it was not challenged by the Minister) it does not explain why the applicant made no inquiry of his lawyers as to the outcome of his case for a period of about three years from the date of the hearing of his case in the Circuit Court. Therefore, the evidence falls short of providing an adequate explanation for that delay of three years.

66    The applicant says he first sought advice when he says he became aware of the decision of the Circuit Court. He also says that when he contacted other lawyers nobody would take his case because they thought it was too late. It appears that the applicant says that he was acting on advice in not commencing an appeal at an earlier time. This could only apply from the time when he sought such advice. There is no other apparent explanation as to why the application for an extension of time to appeal was not brought when he says he became aware of the decision. It was not until about a year later (on the applicant's account) that he commenced an application for an extension.

67    The explanation for the delay is not adequate in all the circumstances, particularly having regard to the length of the delay. The length of the delay is such that it might properly be said that there is prejudice to the public interest in the timely and effective administration of applications for protection visa. If leave to appeal were to be given at this time then it would involve the consideration of a review process in respect of an administrative decision that was made by a delegate of the Minister in July 2013. The public interest in finality weighs significantly against an extension of time in those circumstances.

68    Further, as has been explained, the appeal ground that is proposed is not a ground that was advanced before the primary judge. In effect, the correctness of the decision of the primary judge is not to be challenged. Rather, what is sought to be done is to advance a new ground for the first time many years after the relevant decision. As has been explained, there are additional hurdles that arise in such cases. It may be that the ground could be argued without resort to further evidence, but the contentions advanced as to the merit of the ground sought to rely upon additional evidence in the form of the transcript of the hearing before the Tribunal. The applicant would need leave to adduce such additional evidence. In my view, even assuming that an extension of time to bring the appeal was otherwise to be given, leave to advance the proposed ground one is unlikely to be granted because there is no explanation for the failure to raise the ground before the primary judge and the ground itself has insufficient merit to justify it being raised for the first time on appeal.

69    For reasons that have been given, the review ground as now articulated is arguable, but it is not strong or of obvious merit nor has it been demonstrated to be a ground with reasonable prospects of success.

70    No circumstance beyond the subject matter of the claims considered by the Tribunal and the subject of the review application in the Circuit Court are relied upon. There is no further aspect as to the circumstances of the applicant that is relied upon in support of the application for an extension of time and injunctive relief.

71    The applicant's claim to protection has been considered by a delegate of the Minister, by the Tribunal and by the primary judge. Therefore, he has been given access both to administrative review and to judicial review for jurisdictional error. Both before the Tribunal and before the primary judge he was legally represented. He is in a different position to an applicant who has not been afforded an opportunity for judicial review or who is able to secure legal assistance for the first time when seeking leave to pursue an appeal.

72    I am mindful of the particular circumstances of the applicant. For part of the time in respect of which he seeks an extension he has been serving a term of imprisonment and has been in immigration detention. The subject matter of the proceedings concerns his claims that he is entitled to protection and if he is unable to obtain an extension of time then in all likelihood he will be removed from Australia. However, even taking these matters into account the delay is very considerable and the personal circumstances of the applicant are not a sufficient explanation for that delay.

73    I have also brought to account the evidence of the applicant to the effect that he relied upon his lawyer to tell him when his application to the Circuit Court had been determined and the lawyer failed to tell him. However, as I have indicated, given the length of time, the evidence is not an explanation as to why the applicant did nothing for a number of years. Put another way, it may be expected that a person in the position of the applicant would have made some inquiry himself given the passage of time.

74    In all the circumstances, the case lacks the requisite exceptional character for an extension of time to be granted after such a long delay.

75    For all those reasons, the application for an extension of time must be refused. It follows that the application for injunctive relief should be formally dismissed. The Minister having been successful there is no reason why costs should not follow the event. There will be orders accordingly.

Associate:

Dated:    12 July 2021