Federal Court of Australia

CSE18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1211

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first respondent's costs to be assessed by a registrar of this court on a lump sum basis if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant is a Sri Lankan citizen who arrived in Australia by boat in 2013 and sought a protection visa.

2    In summary, the applicant claimed to fear harm by way of retaliation against her by two persons that she says attacked her, an attack said to have been provoked by her membership of the United Nation Party (UNP). The applicant claimed that she reported the attack to the police but relevantly the offenders had not been sentenced when she left Sri Lanka, and remained in the community where they might harm her.

3    A delegate of the Minister refused to grant the visa.

4    The applicant sought review of the delegate's visa refusal decision by the Administrative Appeals Tribunal. The Tribunal conducted three hearings and received submissions after various extensions of time were granted. The Tribunal affirmed the decision of the delegate.

5    The applicant sought a review of the Tribunal decision by the Federal Circuit Court of Australia (as it then was). The primary judge dismissed the application. The application was filed one day outside the 35 day statutory time limit. The primary judge had a discretion under s 477(2) of the Migration Act 1958 (Cth) to order an extension of the 35 day period. Accordingly the primary judge was concerned with the principles that apply on an application for an extension of time, including the need to assess the merits of the appeal should an extension be granted. Having considered the circumstances, his Honour declined to grant an extension and accordingly the application was dismissed.

6    Some 350 days after the expiry of the statutory time period for an appeal to this Court, the applicant filed an application to extend the time to file an appeal from the decision of the primary judge to refuse to grant an extension of time.

7    The Minister opposes any extension of time, but more relevantly contends that it is not competent for this Court to determine an appeal from the refusal to grant an extension of time. Section 476A(3)(a) of the Migration Act at the relevant time provided that an appeal may not be brought to the Federal Court from a judgment of the Federal Circuit Court that refuses to make an order extending time under s 477(2) of the Migration Act. The Minister filed a notice of objection to competency that reflects that contention.

8    I accept the Minister's submission as to the lack of competency in the circumstances of this application, and it follows that, for reasons explained more fully below, the application must be dismissed. In light of this conclusion it is strictly not necessary to detail the Tribunal's reasoning. I will, however, briefly deal with those reasons and those of the primary judge, as I consider there is value in explaining to the applicant (who is self-represented) that the merits and evidence in support of her application were not overlooked by the primary judge (as she contends) but rather were addressed by him in the context of whether or not it was appropriate to exercise his discretion in favour of, or against, the grant of an extension of time.

The Tribunal's consideration of the applicant's claims

9    The Tribunal recorded the basis of the applicant's claim for protection. In particular, the Tribunal referred to the applicant's evidence about the circumstances of the attack on her and her sister by a number of men; that two of the men were identified (and I will refer to them as N and L); that the attack happened on the day she attended a UNP rally; that she was hospitalised with injuries; that she was pregnant and lost the child as a result of the attack; that the attack was reported to the police and that she gave evidence in the Magistrate's Court in 2012; that she was awarded compensation; that a further civil court date was set for 2013; that neither N or L were taken into custody; and that she had received threats and felt very stressed after the attack.

10    The Tribunal recorded the basis upon which the applicant claimed to fear harm: that she feared revenge; that delays in the legal system meant that she was exposed to a risk of harm from N and L, who continued to live in the same area, over a long period; and that she faced harm by way of sexual abuse, violence and torture not just from N and L, but from gangs working against the UNP and Sri Lankan authorities if she were forced to return to Sri Lanka.

11    However, there were particular parts of the applicant's evidence that the Tribunal referred to in finding that her claims were not credible, even allowing for difficulties that the applicant apparently endured by way of memory and mental health deficiencies.

12    The Tribunal had concerns as to: the applicant's link between the attack and her family's land being used for UNP purposes during an election, when independent information indicated there were no elections during this period; inconsistencies as to whether the land that was used belonged to her family or was her own; aspects of the evidence as to L's involvement in the attack being unsatisfactory; the applicant shifted her evidence to explain why both her and her sister were attacked although the applicant was the intended victim; and the absence of any mention in the Magistrate's Court hearing of any political motivation for the attack.

13    The Tribunal concluded that it was not satisfied that either N or L (or others) targeted and harmed the applicant for reasons of political involvement that would demonstrate any ongoing risk of harm to the applicant from those persons. Nor was the Tribunal satisfied that the applicant had been threatened as a result of the civil and criminal prosecutions of N and L. The Tribunal also concluded that the applicant did not face any exacerbated risk due to delays in the Sri Lankan court system, as it was not satisfied as to the underlying claim that the applicant faced a real chance of serious or significant harm from N or L.

14    The Tribunal also referred to the opportunities it had extended to the applicant to provide supporting evidence as to her alleged health issues, but noted the failure to provide any such evidence despite many months passing. The Tribunal concluded that it was not satisfied about the applicant's claims that she suffers from any medically diagnosed mental health condition affecting her capacity to give evidence and that it remained of the view that the applicant was an inherently unreliable and untruthful witness.

15    The Tribunal also was not satisfied that the applicant faced a real chance of significant harm on return to Sri Lanka on the basis of being a woman, or her having some low level and grassroots involvement in the UNP, or her leaving Sri Lanka unlawfully.

16    The Tribunal was not satisfied that the applicant met the criteria for protection and therefore affirmed the delegate's decision not to grant the visa.

Why the primary judge refused an extension

17    Section 476 of the Migration Act conferred on the Federal Circuit Court the same original jurisdiction in relation to a 'migration decision' as the High Court has under s 75(v) of the Constitution. It is not in issue that the decision of the Tribunal affirming the delegate's decision was a 'migration decision' in respect of which the Federal Circuit Court had original jurisdiction under s 476.

18    An application to the Federal Circuit Court for a remedy to be granted in the exercise of that court's original jurisdiction under s 476 in relation to a migration decision must be made to that court within 35 days of the date of the decision, but that time period may be extended. Section 477 relevantly provided:

Time limits on applications to the Federal Circuit Court

(1)    An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

(Section 476 and s 477 of the Migration Act have since been amended to refer to the 'Federal Circuit and Family Court of Australia (Division 2)' instead of the 'Federal Circuit Court', but it is convenient to continue to refer to the Federal Circuit Court in these reasons).

19    It can be seen from the terms of s 477 that the discretion to extend the time is broad. In this case the primary judge embarked on a detailed consideration of the merits of the application and the explanation for the delay in filing.

20    The explanation for the delay was that the applicant's husband (who filed his own and the applicant's applications) did not have enough money for the return bus ticket to Adelaide until the day after the 35 day period expired.

21    The grounds relied upon for the proposed judicial review application were expressed in general and unparticularised terms such as the Tribunal '[applied] the wrong test', 'failed to take into account relevant country information' and 'failed to actively and intellectually engage with all the integers of our claim for protection'.

22    It is not necessary to record all of the primary judge's reasons as to the prospect of the application succeeding before that Court. Relevantly they are at [95]-[109] of the reasons. However, in summary, the primary judge noted the Tribunal's careful consideration of the applicant's claims over the course of some 90 paragraphs of its reasons, and noted that it was not apparent that it had failed to engage with any part of those claims. The primary judge considered the credibility findings were open to the Tribunal based on the matters referred to, and were not capricious. The ample opportunities extended to the applicant to provide medical evidence undermined any claim based on an absence of procedural fairness in that regard (the applicant was represented before the primary judge and had the assistance of an interpreter).

23    In all the circumstances, the primary judge was not persuaded that there was any merit in the non-specific grounds of review relied upon by the applicant, and concluded that she was really seeking to challenge the merits, rather than pointing to any jurisdictional error.

24    The primary judge concluded that the applicant had not presented a case which had a prospect of securing any relief. His Honour cited the comment of Foster J in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [39], to the effect that in determining an application for an extension of time, the 'more important consideration' is the 'real prospects of obtaining judicial review'.

25    The primary judge then turned to the question of delay, noting there was no evidence as to attempts to find the bus fare during the 35 day period, and concluding that the explanation was not satisfactory.

26    The primary judge declined to grant the extension, a decision that led to the applicant bringing the application in this Court to appeal, albeit considerably out of time.

The reasons of the primary judge and FKV17 and Tu'uta Katoa

27    Before moving to the objection to competency, I note that the nature of the inquiry to be undertaken by the primary judge in the context of an extension application has been the subject of recent decisions, including FKV17 v Minister for Home Affairs [2022] FCAFC 93 and Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28.

28    The Full Court in FKV17 confirmed that an appeal may not be brought to this Court from a judgment of the Federal Circuit Court that refuses to make an order under s 477(2) of the Migration Act: at [11], [89], [93(8)] (Greenwood J), [133] (Rangiah J), [177] (Beach J).

29    However, the majority found that the Federal Circuit Court in that case had committed jurisdictional error by refusing to grant an extension under s 477(2) after it conducted an analysis that went beyond one that was limited to a 'reasonably impressionistic' analysis of the proposed grounds of judicial review: at [88] (Greenwood J), [153] (Rangiah J). In dissent, Beach J did not consider there was any jurisdictional error disclosed by 'delving too deeply': at [176].

30    The High Court subsequently held in Tu'uta Katoa that it is generally permissible to refer to the substantive merits of the proposed application in order to determine whether to grant an extension of time under s 477(2) and s 477A(2) of the Migration Act: at [4], [12], [17]-[19] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [47]-[49], [51]-[52], [54]-[63] (Gordon, Edelman and Steward JJ).

31    Again bearing in mind that the applicant is self-represented on this appeal, I invited the parties to provide short supplementary submissions about those decisions. The Minister did so. The applicant did not provide any further submissions. I accept that the decisions do not assist having regard to the objection to competency, to which I will shortly turn. However, I also note that, having reviewed the primary judge's reasons in some detail, and taking into account the principles discussed in Tu'uta Katoa, my preliminary view is that his Honour conducted his review of the potential merit of the applicant's claims in accordance with those principles. It is neither necessary nor appropriate to say anything further in that regard on this application.

32    For completeness, I note that in the supplementary submissions, the Minister acknowledged that despite the objection to competency, the applicant is not without redress, and indicated that it might be open to the applicant to seek to quash the orders of the primary judge on the basis of jurisdictional error in the original jurisdiction of the Federal Court under s 39B of the Judiciary Act 1903 (Cth) or in the High Court's original jurisdiction under s 75(v) of the Constitution: Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [11]; and SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; (2014) 222 FCR 73 at [62].

The objection to competency - no appeal may be brought to this Court from the orders of the primary judge

33    The proceeding in this Court was commenced by way of an application for an extension of time to file a notice of appeal under Part 36 of the Federal Court Rules 2011 (Cth). It is not an application that seeks to invoke this Court's original jurisdiction under s 39B of the Judiciary Act discrete from its original jurisdiction under s 476A(1) of the Migration Act.

34    Section 24 of the Federal Court of Australia Act 1976 (Cth) relevantly provides that the appellate jurisdiction of this Court includes appeals from judgments of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth.

35    The difficulty for the applicant is that s 476A(3)(a) of the Migration Act provides that despite s 24, an appeal may not be brought to this Court from a judgment of the Federal Circuit Court that makes an order, or refuses to make an order, under s 477(2) of the Act.

36    The evident purpose of s 476A(3)(a) of the Migration Act has been described as to foreclose any right of appeal against discretionary decisions made by the Federal Circuit Court to make an order or refuse to make an order under s 477(2) of the Migration Act: SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339 at [5]; and MZYNW v Minister for Immigration and Citizenship [2012] FCA 150 at [8].

37    It follows that there is no jurisdiction to entertain an appeal from the orders of the Federal Circuit Court refusing the extension of time, and therefore the applicant's application in this Court seeking an extension of time in which to file an appeal from the primary judge's orders must be refused.

38    It is not necessary to consider the reasons for the delay in instituting proceedings in this Court, as the delay is not the basis upon which the objection to competency rests and must succeed.

The applicant's submissions on this application

39    I have not ignored the applicant's purported grounds of appeal or her submissions. I have considered both, again taking into account that she is self-represented. The submissions do not address competency or jurisdiction, but seek to repeat arguments as to the difficulties faced by the applicant and seek the intervention of the Court on compassionate grounds. Whilst I sympathise with the position of the applicant and the ill-health and other difficulties she apparently endures, this Court does not have jurisdiction to conduct any form of merits review, grant a protection visa or otherwise deal with her submissions as to the risks she claims she still faces on any return to Sri Lanka. To the extent the purported appeal grounds assert that she has provided information in support of her visa application that has not been considered, it is not open to this Court, in light of s 476A(3)(a), to assess such grounds in its appellate jurisdiction.

Orders

40    It follows that the application for an extension of time must be dismissed. The objection to competency is upheld. There will be orders accordingly. The applicant should pay the Minister's costs of an incidental to the application, to be assessed by a registrar of this Court on a lump sum basis if not agreed.

Associate:

Dated:    13 October 2022