FEDERAL COURT OF AUSTRALIA

ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 927

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed on 12 October 2022 is to be dismissed.

2.    The applicant is to pay the costs of the first respondent, as taxed or agreed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    INTRODUCTION

1    The applicant seeks an extension of time to appeal from a decision of a judge of the Federal Circuit and Family Court of Australia (Division 2): ASU v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 654 (J).

2    The applicant requires an extension of time within which to file an appeal from the orders made by the primary judge dismissing his application for judicial review because he did not file a notice of appeal within 28 days of the making of those orders as required by r 36.03 of the Federal Court Rules 2011 (Cth) (Rules).

3    The applicant relied on an affidavit that he affirmed on 11 October 2022.

4    The applicant did not make written submissions in support of his application for an extension of time. However, the applicant did make oral submissions at the hearing in support of his application.

5    For the reasons that follow, I have concluded that the applicant’s proposed grounds of appeal have insufficient merit or prospects of success to justify granting the applicant an extension of time to appeal.

B.    BACKGROUND

6    The applicant is a citizen of Malaysia.

7    On 25 April 2017, the applicant arrived in Australia on an Electronic Travel Authority (Class UD) (Subclass 601) visa that had been granted on 17 April 2017 and expired on 25 July 2017.

8    On 22 June 2017, the applicant applied for a protection visa.

9    On 3 July 2017, the applicant was granted an associated Bridging Visa A (Bridging Visa).

10    On 4 October 2017, a delegate of the Minister (Delegate) refused the protection visa application.

11    On 24 October 2017, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the Delegate’s decision to refuse the protection visa application.

12    On 25 May 2021, the applicant’s Bridging Visa was cancelled by the Department of Home Affairs (Department).

13    On 22 June 2021, the applicant applied for revocation of the cancellation decision.

14    On 4 December 2021, the applicant was placed in immigration detention.

15    On 8 February 2022, the applicant participated in a Tribunal hearing via telephone due to a high number of COVID-19 infections and the fact that the applicant was in detention.

16    On 10 February 2022, the Tribunal affirmed the Delegate’s decision to not grant the applicant a protection visa.

17    On 16 March 2022, the applicant applied to the Federal Circuit and Family Court of Australia (Division 2) for judicial review of the decision made by the Tribunal on 10 February 2022.

18    On 16 August 2022, the primary judge dismissed the application for judicial review of the Tribunal’s decision.

19    The relevant reasoning of the Tribunal and the primary judge are addressed below in the course of addressing the prospects for success of the four grounds in the draft notice of appeal.

C.    LEGAL PRINCIPLES

20    Pursuant to r 36.03(a)(i) of the Rules, an appellant must file a notice of appeal within 28 days of the date on which the judgment appealed from was pronounced or the order was made.

21    Rule 36.05 of the Rules states:

Extension of time to file a notice of appeal

(1)    A party who wants to apply for an extension of time within which to file a notice of appeal must file an application, in accordance with Form 67.

(2)    The application may be made during or after the period mentioned in rule 36.03.

(3)    The application must be accompanied by the following:

(a)    the judgment or orders from which the appeal is to be brought;

(b)    the reasons for the judgment or orders, if published;

(c)    an affidavit stating:

(i)    briefly but specifically, the facts on which the application relies; and

(ii)    why the notice of appeal was not filed within time;

(d)    a draft notice of appeal that complies with rules 36.01(1) and (2).

Note:     An application under this rule will be heard by a single Judge unless:

(a)    the Judge directs that the application be heard by the Full Court; or

(b)    the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it appropriate to hear and determine the matter—see section 25(2) of the Act.

22    An application for an extension of time in which to file a notice of appeal generally requires the applicant to meet three criteria: CUO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 53 at [18]-[19] (Rares J). First, the applicant must explain their delay. Second, they must establish that each relevant decision was erroneous, or that there was a reasonable basis to argue that it was. The applicant must demonstrate that the decision in question is attended with sufficient doubt to warrant the grant of leave: Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 at [29] (McHugh, Kirby and Callinan JJ); Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844 at 398-399 (Sheppard, Burchett, Heerey JJ). Third, an applicant must further establish that they would suffer substantial injustice if an extension of time to file a notice of appeal was not granted: CUO17 at [18]-[19]; Bienstein at [29]; Haider v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 216 at [19] (Yates J); Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 373 at [21] (Beach J).

23    The questions of whether the relevant decision is attended with sufficient doubt and whether the applicant would suffer substantial injustice should not be considered in isolation as they bear upon each other, such that the degree of doubt will vary on a case by case basis: Decor at 398-399.

24    An application for an extension of time to file an appeal challenges the respondent’s vested right to retain the benefit of the judgment: CUO17 at [18]; Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [3]-[4] (Brennan CJ and McHugh J). As a result, an impressionistic assessment of the proposed grounds of appeal must be conducted “in a fairly rough and ready way” to determine if they are sufficiently strong and thereby justify leave to appeal: DBD16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 362 at [40] (Feutrill J). In an oft cited passage, recently cited by this court in CUO17 at [18] (Rares J), Lord Denning MR said in Regina v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F:

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.

25    Consistent with s 37M(3) of the Federal Court of Australia Act 1976 (Cth), leave to file an appeal out of time will not be granted where the appeal would have no reasonable prospects of success: Tukala v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCA 74 at [42] (Katzmann J); BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33] (Yates, Wheelahan and O’Bryan JJ); Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5] (Finn J). The overarching consideration for this Court when considering whether to grant an extension of time to file an appeal is whether it is in the interests of justice to grant such an extension in the circumstances of the case: DBD16 at [38].

D.    EXPLANATION FOR DELAY

26    The applicant set out the reasons for his delay in filing his appeal in the application for extension of time filed on 12 October 2022.

27    The applicant gave evidence that the delay in filing his appeal was principally because (a) he could not obtain any legal assistance to file the notice of appeal as he was in immigration detention, and (b) English is not his first language and, by extension, Court documents and the processes to appeal the decision of the primary judge are very complicated and difficult for him to understand.

28    The first respondent (Minister) does not contend that the 28 day delay by the applicant in filing a draft notice of appeal causes prejudice to the Minister. The Minister does contend that the applicant’s explanation for the delay in filing a notice for appeal is inadequate.

29    The Minister submits that a lack of legal advice or legal representation are generally not, in themselves, regarded as satisfactory explanations for a failure to lodge an appeal within time: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [35] (Wigney J) citing SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8] (Katzmann J); SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6] (Flick J); Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17] (Farrell J).

30    I accept that, as a general proposition, a lack of legal advice or legal representation is not a sufficient explanation for delay. The applicant, however, had very limited English, he was at all relevant times in detention on Christmas Island and his delay in filing a notice of appeal occurred during a period in which the provision of legal services was impacted by a global pandemic. For these reasons, I accept that the applicant has provided an adequate and satisfactory explanation for his delay in filing a notice of appeal.

31    I turn now to consider the Minister’s contentions that each of the applicant’s proposed grounds of appeal are without merit and have no reasonable prospects of success.

E.    PROPOSED GROUNDS OF APPEAL

E.1.    Proposed Ground 1

32    Ground 1 of the applicant’s draft notice of appeal is expressed in the following terms (as written):

The Federal circuit court failed to assess whether legislation properly construed the obligation to accord national justice.

33    The applicant submits that the Tribunal failed to accord him natural justice for two reasons. First, the hearing was conducted entirely via telephone and was not a video conference. Second, the interpreter at the hearing before the Tribunal was a Sri Lankan Tamil interpreter and not a Malaysian Tamil interpreter. As a result, the applicant submits that what he said at the Tribunal hearing was mistranslated and misunderstood by the Sri Lankan Tamil interpreter.

34    The applicant submits that he took issue with the decision of the primary judge because he was not satisfied with the outcome of the decision. The applicant further appealed to “humanitarian grounds” in support of this ground, which includes that the applicant is committed to not re-offending and intends to contribute as a productive member of Australian society.

35    The Minister submits that proposed ground 1 seeks to re-agitate Ground 5 of the application for judicial review considered by the primary judge. The applicant contended in Ground 5 that the Tribunal had failed to provide the applicant with procedural fairness. The Minister further submits that the primary judge gave adequate consideration as to whether the Tribunal provided the applicant with procedural fairness at J [19]-[27].

36    The Minister also submits that the applicant’s disagreement with the outcome of the primary judgment invites impermissible consideration of merits review.

37    It is convenient to set out, in full, the following reasons of the primary judge:

19    Ground 5 contended that the Tribunal failed to provide the applicant with procedural fairness.

Particulars (a) to (d) and (f)

20    Particulars (a) to (c) complained that the Tribunal failed to consider that the applicant had applied for revocation of his visa cancellation and that this had not been finalised. However, the Tribunal did consider this in setting out the background to the matter at [5] of its decision. It was unclear from the particulars what else it was contended the Tribunal ought to have done with this information, nor how this was contended to have resulted in jurisdictional error.

21    Some indication was given in particulars (d) and (f). There, it was complained that the applicant was placed into detention “[i]gnoring the pending decision” on his revocation submission. It was contended that this was a denial of procedural fairness.

22    However, the basis of these contentions is similarly unclear. The Tribunal did not place the applicant in detention. This was presumably done by the Department, by reference to the requirements in s 189 of the Act. I therefore do not see how this is capable of demonstrating relevant legal error on the part of the Tribunal.

23    Whilst the applicant may well have found it more difficult to present his case from a detention centre, it is not apparent how this could be said to have relevantly denied him any of the procedural fairness obligations set out in Part 7 of the Act. The applicant was invited to attend a hearing before the Tribunal which he did attend (albeit by telephone). For reasons considered below, I have not accepted that the applicant was denied a meaningful hearing or the opportunity to give evidence and present arguments relating to issues that arose in relation to the review.

Particular (e)

24    Particular (e) additionally took issue with the Tribunal placing no weight upon untranslated documents that were provided in the applicant’s native language. In this regard, the Tribunal was contended to have provided “no opportunity” for the applicant to seek translation of the documents.

25    However, there is no general duty upon the Tribunal to obtain translation of documents: Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546 at [25]. I accept the Minister’s submission that such an obligation did not arise in this case, noting particularly that:

(a)    the applicant appears to have had substantial opportunity from a time perspective in which to obtain translations (noting that the protection visa application was made in 2017);

(b)    the Tribunal informed the applicant in its hearing invitation that “[a]ny documents or written submissions sent to us should be in English or translated by a qualified translator”; and

(c)    there is no evidence that the applicant explained the relevance of the documents to the Tribunal or sought additional time in which to obtain translations.

26    As no translations of the documents have been placed before the Court, additionally, I am unable to be satisfied that materiality has been demonstrated in the sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 (MZAPC) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

27    For the above reasons, I am not satisfied the ground 5 is capable of demonstrating jurisdictional error.

38    Ground 1 of the draft notice of appeal raises the same point, as a matter of substance, as Ground 5 of the application for judicial review before the primary judge. In my view, the primary judge addressed each of the particulars relied upon by the applicant in support of Ground 5 in a careful and considered manner. I am satisfied that the consideration by the primary judge of Ground 5 at J [19]-[25] not only disclosed no error by the primary judge but also demonstrated no jurisdictional error by the Tribunal.

39    I would only add to the primary judge’s consideration two additional observations.

40    First, while not desirable, a hearing conducted by telephone without video conferencing facilities does not, in and of itself, give rise to a denial of procedural fairness. Having said that, it is important that, where reasonably practicable, effective video conferencing facilities are available and utilised in migration matters involving unrepresented litigants where the practical reality of immigration detention in some facilities, or a global pandemic, might otherwise preclude hearings in person.

41    Second, the identification and provision of appropriately qualified interpreters to assist applicants for protection visa applications is important to ensure the integrity and fairness of the administration of justice in this country. It is essential that all reasonable steps be taken to ensure that a self-represented litigant is provided with an appropriately qualified interpreter, having regard to material differences in dialects, to minimise the risk of misunderstandings or confusion. These steps could be expected to include, except to the extent that it was not reasonably practicable, (a) confirming in advance of the hearing the particular native language and any particular dialect spoken by the applicant, (b) identifying an interpreter with sufficient proficiency in that language to interpret effectively, (c) ensuring that relevant Court documents have been provided to the interpreter, and (d) arranging for the interpreter to be available in person in Court, or if the applicant is not able to be present in Court, at the same physical location as the applicant.

42    The importance of taking all such steps is highlighted by the inherent difficulties that a Tribunal member or a judge encounters in being satisfied that an interpreter has correctly and adequately conveyed to the self-represented litigant the substance of what has been said. These difficulties are exacerbated by the reality of an interpreter’s task which often requires more than a mere translation of words in one language to another. Rather, interpreters are often required to engage in the interpretation of the meaning of complex and technical legal provisions and principles, including perhaps, most relevantly, the distinction between merits and jurisdictional review of decisions. In addition, an interpreter must have regard to any specific cultural issues in the use of language that might otherwise have led to confusion or misunderstanding from what might be described as literal or non-contextual translations.

43    Even more difficult, in the absence of a transcript and expert evidence as to the quality of the interpretation provided, is making any finding of a breach of procedural fairness giving rise to jurisdictional error by reason of a denial of a fair hearing because of errors or omissions by an interpreter. Generalised recollections or assertions that interpreters have not accurately interpreted what has been said in the course of an oral hearing provide little assistance. Moreover, the significance of particular examples of inaccurate or incomplete interpretations, in isolation, is unlikely to be readily apparent or discernible.

E.2.    Proposed Ground 2

44    Ground 2 of the applicant’s draft notice of appeal is expressed in the following terms (as written):

The Federal circuit court ignored the relevant materials and Identified the wrong issues and asked themselves wrong questions.

45    The applicant clarified that the reference to the “Federal circuit court” was intended to be a reference to the Tribunal. He submitted that the Tribunal’s decision not to overturn the decision of the Delegate turned on a finding that he had lied, but he had no reason to lie.

46    The Minister submits that proposed ground 2 did not specifically identify the “wrong issues” and “wrong questions” that the Tribunal focused on in making its decision. The Minister further submits that the “relevant materials” that were supposedly ignored by the Tribunal are not identified by the applicant.

47    The applicant, in the course of oral submissions, (a) confirmed that he had “no opinion” in relation to the allegation that relevant materials had been ignored by the Tribunal, (b) conceded that “no wrong questions were asked” by the Tribunal, and (c) submitted that the Tribunal incorrectly found that he had given false evidence.

48    I am satisfied that proposed ground 2 has no reasonable prospects of success.

49    First, no particulars of the alleged relevant materials ignored, the wrong issues identified and the wrong questions asked by the Tribunal, were provided.

50    Second, the applicant did not seek, in the course of the hearing of his application, to identify any of the relevant materials ignored, the wrong issues identified or the wrong questions asked.

51    Third, the complaint advanced by the applicant that the Tribunal had incorrectly found that he had given false evidence, does not give rise to any jurisdictional error. It does not rise above an impermissible request for merits review. I am satisfied that it was open for the Tribunal to find that the applicant had given false evidence and manufactured his claims based on the evidence before it.

52    The reasons that the Tribunal gave in supports of its findings included (a) the applicant’s delay in applying for a protection visa, (b) the applicant’s inconsistent accounts of his protection claims in his original application as compared against the accounts given before the Tribunal, and (c) the evidence as to where the applicant had lived in Malaysia and that he had relocated internally within Malaysia to avoid harm.

E.3.    Proposed Ground 3

53    Ground 3 of the applicant’s draft notice of appeal is expressed in the following terms (as written):

They made incorrect interpretations and applied applicable law in a way that affects the exercise of power.

54    The applicant appeared to clarify in the course of his oral submissions that the reference to the entity that made incorrect interpretations of the law, or misapplied it, was to the Tribunal rather than the primary judge.

55    When pressed as to the nature of the alleged incorrect interpretations, the applicant responded through the interpreter:

Now that lady was asking a lot of questions to me that – I mean, she was interpreting a lot of questions to me. I repeatedly told her, “Madam, by the way you’re talking, I don’t understand.” I repeatedly said that I don’t understand. Then I told her, “Don’t please misinterpret because, if you do misinterpret, that it might destroy my life.”

56    When asked to explain what the applicable law was, that had been applied in a way that affected the exercise of power, the applicant stated through the interpreter:

Okay. So I’m honestly answering that I’m not an educated person. I don’t know about the law, and I’m not saying what is wrong and right in the law, and all that, but what I am trying to say is that the way that the case was argued, and the argument used in the case, as well as the interpretation – I am not very satisfied.

57    The Minister submits that the primary judge understood her task on judicial review and carefully considered the applicant’s pleaded review grounds and other issues raised at the hearing. The Minister also submits that the Tribunal correctly interpreted and applied the applicable law.

58    I am satisfied that proposed ground 3 has no reasonable prospects of success.

59    In my view, the primary judge did not incorrectly apply any applicable law in the course of her careful consideration at J [18]-[59] of each of the applicant’s ten grounds of review and at J [60] and J [62]-[66] in respect of the further matters raised by the applicant at the hearing before the primary judge. Further, with respect, the primary judge correctly and succinctly explained at J [61] the limitations of the Court’s role on judicial review.

60    I am also satisfied that the decision record of the Tribunal (DR) did not disclose any misapplication of any applicable law affecting the exercise of jurisdiction that might give rise to jurisdictional error. The Tribunal correctly identified the criteria for a protection visa at DR [8]-[13], considered the claims made by the applicant and the evidence before it at DR [14]-[35], and then made findings and provided reasons for affirming the Delegate’s decision not to grant a protection visa at DR [36]-[61].

61    The Tribunal was satisfied that the applicant’s protection claims were “manufactured in their entirety” because of (a) the delay in the applicant applying for a protection visa, (b) the inconsistent evidence given by the applicant about the origin of the antipathy of the Malaysian police towards him and the false cases advanced against him, and (c) the applicant’s vague details about whether he relocated within Malaysia to seek safety.

62    I am satisfied that the “manufactured in their entirety” finding was open to the Tribunal and it is not amenable to judicial review. The matters relied upon by the Tribunal in support of its conclusion are matters relevant to the assessment of the weight it could place on the evidence of the applicant and, in turn, its conclusion that the applicant’s protection claims were “manufactured in their entirety”. The credit of an applicant and the weight to be given to their evidence are matters for the Tribunal, except to the extent that the findings made by the Tribunal are legally unreasonable or they are illogical or irrational because they lack any evidence or intelligible justification.

63    The misinterpretation contention in proposed ground 3 cannot be accepted for the same reasons that ground 1 has no reasonable prospects of success.

E.4.    Proposed Ground 4

64    Ground 4 of the applicant’s draft notice of appeal is expressed in the following terms (as written):

The Federal circuit court Judge did not considered on consequences of his decision and or judgment to show concerns about my person facing the prospect of indefinite detention however such finding was open to the decision-maker.

65    Again, although it was not entirely clear, the applicant appeared to confirm in his oral submissions that this proposed ground was directed at a failure by the Tribunal to take into account the prospect of him facing indefinite detention.

66    In any event, it is not readily apparent how any prospect of indefinite detention might have arisen. A finding by the Tribunal that the applicant did not meet Australia’s protection obligations could not give rise to any indefinite detention. The Tribunal found that there was no reason why the applicant could not return to Malaysia as it was not satisfied that there was a real chance of any serious harm to the applicant due to his race, religion, nationality, membership of a particular social group or political opinion, if he were returned to Malaysia.

67    As submitted by the Minister, the applicant might have been conflating the cancellation of his bridging visa under s 501 of the Migration Act 1958 (Cth) with his unsuccessful application for a protection visa.

68    I am satisfied that proposed ground 4 has no reasonable prospects of success.

F.    DISPOSITION

69    The application is to be dismissed.

70    The applicant is to pay the costs of the Minister, as taxed or agreed.

Associate:

Dated:    9 August 2023