Federal Court of Australia

CUO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 53

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs, excluding costs of the appearance on 16 November 2022.

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

REASONS FOR JUDGMENT

(Revised from transcript)

RARES J:

1    This is an application for an extension of time for leave to bring an appeal against the decision of the Federal Circuit Court of Australia given on 3 September 2020. The trial judge refused the applicant’s application for constitutional writ relief against the decision of the Immigration Assessment Authority made on 23 May 2017 to affirm the decision of the delegate of the Minister made on 7 February 2017 to refuse to grant him a safe haven enterprise protection (subclass 790) visa: CUO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2454.

2    The applicant was represented by counsel and a solicitor in the proceeding before the trial judge. However, although the solicitor assisted the applicant in drafting his affidavit and draft notice of appeal filed on 10 August 2021, the solicitor does not appear to have provided him with legal assistance. The draft notice of appeal in substance restated the sole ground advanced before her Honour, namely that her Honour erred in failing to find that the Authority had not given proper, genuine and realistic consideration to the applicant’s claim.

Background

3    The applicant is a citizen of Bangladesh. He arrived in Australia as an unauthorised maritime arrival on 11 April 2013. Shortly after his arrival, he completed an entry interview on 20 April 2013. The record of the interview stated that the applicant understood the interpreter. However, this was one of the matters which he challenged before the Authority and the trial judge and reagitated on this application. Essentially, as put to her Honour and repeated to me, the applicant complained that the Authority had failed to give proper, genuine and realist consideration to, first, the fact that the Bengali interpreter at the entry interview spoke a different dialect, namely Rohingya, and secondly, the applicant’s explanation that the answers he had given in the entry interview occurred in circumstances where he was suffering from an illness that affected his ability to participate and provide accurate responses.

4    One of the issues that concerned the Authority and affected his credibility was the applicant’s failure at the entry interview to mention anything about his later assertion that he was perceived to be a leader, or involved in, the Jamaat-e-Islami (JI) movement and his explanation for that omission as being due to one or both of his language difference with the interpreter and his illness. The Authority dealt with that subject in [16] of its reasons as follows:

Given JI’s reputation for engaging in political violence a person might be wary of disclosing his circumstances to the Australian authorities if he was accused of being a JI leader and was being sought by not only JI’s political rivals but by the Bangladesh police. A person might also be reluctant to speak about matters like threats of violence because they involved painful memories. A person might fail to mention various matters as a consequence of being unwell, and a person’s statements might not be properly communicated in the absence of an interpreter speaking the applicant’s language. However, in this case the entry interview transcript records that the interpreter did speak Bengali. Given that matters such as the applicant’s employment, residency history and family composition were recorded, I am not persuaded that the applicant was affected by communication problems or illness at the entry interview. Moreover, the applicant’s claim that, on the one hand, he did not mention these things because he was fearful of doing so, and/or because they were too painful to speak about and/or because he was not well, is at odds with his claim that his entry interview statements were not properly interpreted (ie: that he did make claims of this kind but that these were not properly interpreted). The applicant has provided a number of documents from members of the community in Australia attesting to his honesty and good character. However, such letters of support do not overcome the doubts raised by the vague and unconvincing evidence provided by the applicant regarding his brother and uncles’ involvement in JI, his own attendance of JI rallies, and the unconvincing documentary evidence he has provided to support his claim to have been the focus of ongoing adverse attention from the AL and/or from the Jihadul Islam Party or some other group making extortion demands of him. I am not satisfied, and I do not accept, that the applicant’s brother and uncle were ever associated with JI or that the applicant ever attended any JI rallies, or that he has ever supported JI or been associated with JI in any way, or that he has any wish to support JI. I do not accept that demands for money have been made to the applicant or that he and/or his family members have been the focus of ongoing threats and/or extortion demands, or that they have been of interest to the Bangladesh police.

(emphasis added)

The applicant’s delay in bringing this application

5    In explaining the reasons for his delay in bringing this application, the applicant made an affidavit bearing the date 9 August 2021, a submission dated 14 November 2022 that he handed up at the hearing on 16 November 2022 when the matter was first listed, but which I adjourned because he had not had proper opportunity to see a hard copy of the court book prepared by the Minister, and a lengthy affidavit dated 24 January 2023.

6    In his first affidavit the applicant said that he had been ill, causing him not to be able to lodge an appeal from the decision of the trial judge within the statutory timeframe, and thus sought an extension of time. This affidavit contained as annexures the draft notice of appeal setting out a sole ground. It particularised as the basis of that ground [24] of the trial judge’s reasons.

7    The applicant attached a considerable amount of documentation to his second affidavit, identifying many, if not all, of his communications with his solicitor both by email and by text message. Relevantly, the applicant said that the solicitor had not given him an explanation about the time in which he had to file an appeal or his prospects, and that he, in effect, relied on his solicitor to act in his interests.

8    The material in the second affidavit showed that, on about 8 January 2021, the solicitor provided the applicant with a draft of the affidavit and application for extension of time that came to be filed on 10 August 2021. The applicant verified the affidavit on 9 January 2021 and appears to have returned signed copies of it and the application for an extension of time to the solicitors on the next day. However, the solicitor did not file those documents in the Court. The applicant’s evidence does not indicate that he ever asked the solicitor to do so or was told by the solicitor whether or not he could, or would, do so. There is no material in the applicant’s affidavits that suggests that he had made any inquiries about whether the documents that he returned to the solicitor on 10 January 2021 had been filed until much later, when he became concerned about his immigration status after communication from the Minister’s Department. That ultimately led to him filing the application for an extension of time and the affidavit on 10 August 2021.

9    Both when he appeared before me on 16 November 2022 and today, the applicant asked for further time so that he could obtain a new lawyer to provide him with assistance and to collect further evidence or material that would support his substantive claim for the grant of the visa.

10    I explained to the applicant that the role of the Court was to review whether the Authority or the trial judge had made an error in dealing with his applications, and that the Court could not concern itself with the merits of his claim.

The trial judge’s reasons

11    The trial judge reserved her judgment after the hearing on 5 August 2020 and delivered pellucid reasons for dismissing the claim below on 3 September 2020. Her Honour found that the applicant’s complaint in relation to the difference of dialects between him and the interpreter was not supported by evidence. She concluded that the Authority had found, in [16] of its reasons, that the entry interview transcript recorded that the interpreter spoke Bengali and that the applicant’s employment history, residency history and family composition had all been recorded.

12    Her Honour found that the Authority was not persuaded that the applicant was affected by communication problems or illness at the entry interview. She found that a fair reading of the Authority’s decision record made clear that it did not fail to have regard to his explanation for not having raised claims about JI at the entry interview. That was because it had noted his assertion about the difference in dialects between the interpreter and himself, namely that the interpreter spoke Rohingya, and the applicant’s assertion that he was unwell. She found that it was clear from the Authority’s reasons in [16] that it had considered and rejected those assertions. She held that its findings were open to the Authority on the evidence and material before it and for the reasons that it had given, so that it was clear that, on a fair reading, it had had regard to the matters on which the appliacnt relied as explanations but rejected those claims

13    Her Honour found that the Authority did not have to accept uncritically any or all claims that an applicant for review of a delegate’s decision had made, and did not have to possess evidence to rebut those claims before it could conclude that it was not satisfied a particular claim was established.

14    The trial judge found that there was no basis to assert that the Authority had failed to afford procedural fairness, made its findings without a probative basis, acted unreasonably or lacked an intelligible foundation for its conclusions. She rejected the assertion that it had not given proper, genuine and realistic consideration to the applicant’s claims and found that it had, in fact, engaged in an active intellectual process in the sense explained in Tickner v Chapman (1995) 57 FCR 451 at 476-477 per Burchett J, 495-496 per Kiefel J and 462 per Black CJ. Her Honour found at [24]:

Further, a fair reading of the Authority's decision record makes clear that the Authority had other concerns about the applicant's credibility beyond the inconsistencies arising from the Entry Interview. The Authority detailed these concerns and inconsistencies in its decision record. They include the applicant's '"vague and unconvincing evidence" regarding specific positions in JI held by the applicant's relatives; the unsatisfactory nature of "threat letters" in light of the applicant's inconsistent and unconvincing evidence about those matters; the Authority's lack of satisfaction that the applicant would be denied the likelihood to earn a living if he were returned to Bangladesh; the Authority's finding that there is no ongoing interest in the applicant; the fact DFAT is not aware of any cases where authorities have enforced provisions upon persons departing Bangladesh illegally; most returnees, including asylum seekers, are not subject to adverse attention regardless of whether they have returned voluntarily or involuntarily; the Authority's finding that the applicant is not of adverse interest to the Bangladesh police and, the country information before it that suggested a person with the applicant's profile is not at risk of serious harm if returned to Bangladesh.

15    Her Honour concluded that a fair reading of the Authority’s decision made clear that it had understood the claims that the applicant was making and had had regard to the material he provided in support, but that it also had identified independent country information to which it had regard. Her Honour found that the Authority made its findings based on the evidence and material before it and that those were open to it on that evidence and material for the reasons that it gave. She concluded that it had correctly understood and applied the law, so that there was no basis on which to grant the applicant relief.

The applicant’s submissions

16    The applicant argued before me that he had not been able to file a notice of appeal within time because he was ill and that he had trusted his solicitor to act for him and do everything to assist him, given his lack of familiarity with the Australian legal system and his trust in his solicitor. He blamed his solicitor for not lodging the appeal in time and for not giving him sufficient information thereafter to draw to his attention to the failure to have lodged any application for an extension of time until ultimately the applicant did so in August 2021. He said that he only recently had become aware of the true position having received advice from a legal assistance provider, LawRight, and that a solicitor from LawRight had assisted him in preparing his most recent affidavit.

17    He repeated his claims that he had put to the Authority, and by his counsel to her Honour, that the interpreter at the entry interview had not properly understood him because of the alleged difference in dialects and that he had been unwell as being reasons why the Authority should have concluded that any failure to mention JI at the entry interview ought not be treated adversely to him.

Consideration

18    An application for an extension of time in which to file a notice of appeal requires the applicant, first, to explain his or her delay, secondly, to establish that each relevant decision was erroneous, or that there was a reasonable basis to argue that it was, and, thirdly, to establish that he or she would suffer substantial injustice if leave to appeal or an extension of time were not granted. That is because an application for an extension of time challenges a respondent’s vested right to retain the benefit of the judgment that is the subject of the proposed appeal, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4], and see also at 539 to 543 [66], per Kirby J. The Court deals with such applications in the way that each of their Honours adopted from what Lord Denning MR had said in Regina v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E - F (and see also FFM20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] 286 FCR 405 at [19] per Rares, Stewart and Abraham JJ), namely:

We often like to know the outline of a case. If it appears to be a case which is strong on the merits and which ought to be heard in fairness to the parties, we may think it proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.

19    The principles that govern the grant of leave to appeal are well established, as McHugh, Kirby and Callinan JJ said in Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29], namely:

… An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave. The applicant must also show that substantial injustice will result from a refusal of leave to appeal.

20    In Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 at 425-427 [24]-[27] Kiefel CJ, Keane, Gordon and Steward JJ discussed the obligation of a decision maker to consider the way in which a person made claims or put arguments, saying:

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.

None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(emphasis added)

21    I am not satisfied by the applicant’s explanation of the reasons for his delay in filing his application for an extension of time. While it may have been understandable that the applicant placed great reliance on his solicitor to assist him, the drafting of the application for an extension of time and affidavit that the applicant made which bears the date 9 August 2021 occurred in January 2021. The solicitor drafted those documents on the basis that the applicant himself, as opposed to a lawyer, would file them because I infer that the solicitor could not certify, under s 486I(1) of the Migration Act 1958 (Cth), that he had reasonable grounds for believing that the appeal had a reasonable prospect of success.

22    The applicant did not explain in his evidence anything about following up whether the his solicitor filed the application for an extension of time or the affidavit that he executed on 9 January 2021 at any time until immediately before those documents were filed on 10 August 2021. While no doubt the applicant, along with the rest of the community, would have been affected by lockdowns and difficulties created throughout the Commonwealth by reason of various Governments’ responses to the COVID-19 pandemic and any intervening effect on himself and his solicitor, and accepting that a litigant in person will not fully appreciate everything that needs to be done in litigation, I am not satisfied that the applicant has given an adequate or sufficiently fulsome explanation for his delay. A person in the applicant’s position might reasonably have been expected to follow up with his solicitor what had happened to the documents he had returned on 10 January 2021, enquire whether the proceeding was being dealt with by this Court and when he could expect to have the application for an extension of time heard. The docketing of this application and the hearing of it also has been affected by the COVID-19 pandemic.

23    Moreover, even if I were to accept that the applicant had given an adequate explanation (which I have not), I am unable to see that there is any merit at all in the proposed appeal.

24    In my opinion, for the reasons that the trial judge gave, the Authority identified the applicant’s claims and explanations (namely, the difference in dialects between himself and the interpreter and his illness) as to why he had not, or was not recorded as having, mentioned anything about a claim relating to JI in his entry interview. In [16] of its decision, the Authority clearly discussed those claims, evaluated them and gave cogent reasons as to why it rejected them. Those reasons were open to it on the evidence and material before it, and like her Honour, I am unable to perceive any basis on which it could be argued the Authority committed any, let alone any material, jurisdictional error or failed to discharge its task of reviewing the delegate’s decision that refused to grant the applicant a visa in accordance with law.

Conclusion

25    In my opinion, for these reasons, there is no basis to doubt the correctness of the trial judge’s decision. The application is entirely without merit and must be dismissed with costs.

Associate:

Dated:    3 February 2023