Federal Court of Australia

BML19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1437

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed on 13 November 2020 is dismissed.

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

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    By application filed on 13 November 2020 the applicant seeks an extension of time within which to appeal from orders made by the Federal Circuit Court of Australia (as it then was, now the Federal Circuit and Family Court of Australia (Div 2)) dismissing an application for judicial review of a decision of the second respondent (Authority) made on 23 July 2020: see BML19 v Minister for Immigration & Anor [2020] FCCA 2009. The Authority had affirmed an earlier decision of a delegate of the first respondent (Minister) not to grant the applicant a safe haven enterprise (Class XE Subclass 790) visa (SHEV).

Background

2    The applicant is a citizen of Bangladesh. On 14 March 2013 he arrived in Australia as an unauthorised maritime arrival.

3    On 3 May 2013 the applicant participated in an irregular maritime arrival entry interview in which he made claims to fear harm arising from his membership of the Bangladesh Nationalist Party (BNP) and a dispute in relation to his girlfriend’s family.

4    On 13 April 2017 the applicant applied for a SHEV.

5    In a statement made on 6 April 2017 accompanying his SHEV application the applicant set out his claims to fear harm (statement of claims). In summary, the applicant claimed that:

(1)    in 2007 he began volunteering for the BNP in the Ghungadia area in Bangladesh and over time took the role of messenger. The applicant’s father also worked for the BNP;

(2)    his role included informing BNP supporters of where and when political meetings and rallies were to be held. The applicant would contact supporters and distribute pamphlets and other material to encourage people to join and participate in the party;

(3)    he assisted in organising a rally to protest the disappearance of a BNP member of parliament (MP), who he believed was kidnapped by members or supporters of the opposition party;

(4)    on 24 April 2012, after a second protest held in relation to the MP’s disappearance, the applicant was attacked by about seven or eight men, one of whom he recognised as his girlfriend’s brother. The applicant was beaten unconscious with an iron rod and left tied to a tree;

(5)    in preparation for a traditional ceremony held after his mother’s death, he attended the local market and witnessed a protest between the BNP and Awami League (AL) supporters. The applicant was attacked by AL members with a sword. On the same day the applicant left with two other friends for the border between Bangladesh and India. The applicant’s father subsequently arranged for a smuggler to help the applicant and his friends cross the border;

(6)    in around October 2012 the applicant’s father informed him that AL members had visited and threatened to burn down his home and to kidnap his sister unless the applicant was handed over;

(7)    on 14 October 2012 the applicant returned to Bangladesh and lived in hiding at his grandparents’ home. The applicant then moved to another village and remained there for two months with relatives;

(8)    in around November 2012 the applicant’s girlfriend’s brother organised an attack on him. The applicant was attacked by several men while travelling in a rickshaw. He was beaten and left unconscious and was taken to hospital where he spent five days in recovery. While he was in hospital, his girlfriend was married off by her brothers. She committed suicide three days later;

(9)    the applicant was fearful for his life, was wanted by a major political party and accordingly decided it was safer for him to leave; and

(10)    since arriving in Australia the applicant has joined the Australian BNP chapter and attended some of their events. The applicant was informed by his brother that the AL are still searching for him.

6    On 4 December 2018 the applicant attended an interview with the delegate. During the interview, the applicant raised for the first time a further claim that his elder brother had been missing since January 2017 but was unable to provide any evidence of this claim.

7    On 14 December 2018 the applicant’s representatives at the time, Playfair Visa and Migration Services, wrote a letter to the delegate which summarised the applicant’s claims for protection and made further submissions by reference to independent country information (14 December 2018 Submissions). The letter raised a claim that the applicant faced risk of significant harm due to ongoing health concerns and that he could not access the level of healthcare required in Bangladesh. The letter enclosed three letters from doctors which detailed the applicant’s medical conditions.

8    On 20 February 2019 the delegate refused to grant the applicant a SHEV and on 25 February 2019 the delegate referred the matter to the Authority.

9    On 22 February 2019 the applicant appointed Playfair as his representative before the Authority.

10    On 18 March 2019 Playfair provided submissions to the Authority which contended that, among other things, there was an error in the delegate’s fact finding and there were breaches of procedural fairness (18 March 2019 Submissions).

11    On 28 March 2019 the Authority affirmed the delegate’s decision not to grant the applicant a SHEV.

The Authority’s decision

12    The Authority had regard to the material referred to it by the Secretary under s 473CB of the Migration Act 1958 (Cth). The Authority noted that it had received the 18 March 2019 Submissions and it had regard to those submissions as “argument” rather than as “information”.

13    The Authority found that, of the four publications referred to in the 18 March 2019 Submissions, three of them had already been included in the applicant’s 14 December 2018 Submissions and therefore were not new information. The Authority found that the fourth report, which was published in 2014, was not before the delegate and was new information. As no explanation was provided as to why it could not have been provided to the delegate and as it was country information rather than credible personal information, the Authority was not satisfied that either of the requirements of s 473DD(b) of the Act had been met.

14    The Authority considered the applicant’s claims made in his entry interview, in his statement of claims and during the interview with the delegate and noted that the applicant provided a significant amount of detail on those occasions and consistently gave precise dates for a number of key events which occurred prior to his departure from Bangladesh.

15    The Authority then identified discrepancies in the applicant’s evidence and claims, including in relation to:

(1)    the events in April 2012. The Authority noted that there was a variation in the applicant’s evidence about the protest which took place on 24 April 2012 when he claimed he was attacked by a number of men as between his statement of claims and the evidence he gave at the protection visa interview: Authority’s reasons at [9]-[10];

(2)    the events in October 2012 when there was another political procession and the evidence the applicant gave about where he stayed on return to Bangladesh: reasons at [12]; and

(3)    the applicant’s claim to have visited his father’s grave on 23 November 2012 and to have been caught and beaten by AL members while traveling there. Given the applicant’s evidence that he was spotted by his assailants under a heap of clothes on a vehicle, which the Authority found to be improbable, and the nature of the medical certificate the applicant relied on to establish that he was injured and hospitalised, the Authority did not accept that this event occurred: reasons at [13].

16    Despite the consistency of the dates and details about attacks by AL members the Authority did not accept that the applicant was targeted by AL members as he claimed. Further, given that the applicant had consistently stated that he was not a member of the BNP, was unable to answer the delegate’s questions about BNP ideology or policy, had not claimed that his father was targeted because of his BNP membership or that he had ever been targeted because of his father’s activities, the Authority did not consider his claims to be plausible. It rejected the applicant’s claim that he suffered harm because of his political opinions or activities: reasons at [14].

17    The Authority considered the applicant’s alternative motive for his claimed assaults and reason for leaving Bangladesh, namely because of his relationship with his girlfriend, “T”, of which her brothers, who were AL members, did not approve. The Authority did not accept this claim because of plausibility and consistency issues with the applicant’s evidence: reasons at [15]-[16]. Nor did the Authority accept that the applicant was a member of the BNP chapter in Australia given that he was not a member in Bangladesh: reasons at [19].

18    The Authority noted that the applicant claimed: in his statement of claims that his brother, “S”, recently told him that members of the AL had been to his home seeking the applicant; and at the protection visa interview that S had been missing since 13 January 2017 and that, upon being told of S’s disappearance, he lost consciousness and was admitted to hospital. The Authority noted that the applicant did not mention S’s disappearance in his statement of claims. The applicant submitted this was because either he forgot or because it was too difficult for him to talk about the incident. The Authority rejected that submission, noting that the applicant had outlined a recent conversation with S in his statement of claims. The Authority did not accept these recent claims given the inconsistency between the applicant’s oral evidence and his statement of claims and its finding that the applicant did not suffer any harm from members of the AL prior to departing Bangladesh: reasons at [20].

19    The Authority also considered the applicant’s claimed medical conditions, noting that: his hyperparathyroidism could be entirely cured by surgery which his doctor recommended take place within six months; his type II diabetes was being treated with oral medication; he was awaiting a gastroscopy for his gastritis; and he suffered from migraines of unknown cause: reasons at [21].

20    As the Authority found that the applicant was not a member of the BNP it was not satisfied that he faces a real chance of harm from the authorities or security forces because of his political views. The Authority referred to independent country information which indicated that Bangladesh was prone to high levels of politically motivated violence which tended to peak during periods of political unrest e.g., during elections, strikes and blockades. Given the Authority’s findings that the applicant was not assaulted by members of the AL in 2012 because he was a BNP supporter or that he encountered any harm because of his political views, the Authority concluded that the applicant was and is of no interest to the AL: reasons at [24]-[25].

21    Although the Authority accepted that the applicant suffered from various health issues and that the country information indicated that the standard of health care in Bangladesh is low by international standards, it did not accept that meant that the applicant would be unable to obtain the medications he needed to treat his ongoing conditions. The Authority also noted that even if that were not the case, the applicant’s inability to access health care would be due to lack of available facilities within Bangladesh and not because of his race, religion, nationality or because he is a member of a particular social group. Accordingly, the Authority concluded that the applicant did not have a well-founded fear of persecution because of his medical conditions: reasons at [27].

22    Although not raised by the applicant, the Authority noted that the delegate had considered whether the applicant faced any chance of harm as a failed asylum seeker or because of his illegal departure. Based on independent country information, the Authority found that, although it may be an offence to depart Bangladesh without a passport, the Department of Foreign Affairs and Trade was not aware of the relevant provisions or penalties being enforced and concluded that most returnees, including failed asylum seekers, were unlikely to face adverse attention whether they were returned voluntarily or involuntarily: reasons at [28]-[29].

23    Based on the evidence before it, the Authority concluded that the applicant did not meet the definition of refugee in s 5H(1) of the Act and that the applicant did not meet the requirements of s 36(2)(a) of the Act: reasons at [30].

24    The Authority also considered whether the applicant met the requirements for complementary protection in s 36(2)(aa) of the Act. It concluded that he did not: reasons at [33]-[34].

25    The Authority therefore affirmed the delegate’s decision.

Proceeding in the Federal Circuit Court

26    The applicant sought judicial review of the Authority’s decision in the Federal Circuit Court. He raised two grounds in his application, which are reproduced at [53] of BML19:

Ground One:

The Immigration Assessment Authority has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth).

Particulars:

In dealing with the Applicant's claims under Section 36(2)(aa) of the Migration Act, the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.

Ground Two:

The IAA denied procedural fairness to the applicant.

27    The applicant was not legally represented before the Federal Circuit Court. At the final hearing he appeared in person assisted by an interpreter in the Bangla language. The primary judge observed that the applicant was unable to make submissions about the grounds of his application and, when asked, explained that they had been drafted with the assistance of a “friend”.

28    The primary judge addressed each of the grounds of the application.

29    As to the first ground the primary judge found that there was nothing in the evidence before the court, or in the Authority’s decision record to indicate that the Authority misunderstood or misapplied the “correct test” in relation to s 36(2)(aa) of the Act. His Honour noted that the Authority made comprehensive factual findings in relation to the applicant’s claims and that its credibility findings were all reasonably open to it on the material before it. His Honour also observed that the Authority gave cogent and intelligible reasons probative of the material before it: BML19 at [61]-[62].

30    The primary judge noted that the Authority was not satisfied that the applicant faced a real risk of harm because of his political views or that he was, or would be, of interest to the AL and found that the applicant was not a member of the BNP and would not face a real risk of harm for this reason if he were return to Bangladesh: BML19 at [63].

31    The primary judge found that in considering s 36(2)(aa) of the Act the Authority was entitled to rely on factual findings made and explained earlier in its decision record and, given those findings, the ground was not made out: BML19 at [66]-[67].

32    The primary judge then addressed ground two of the applicant’s application by which the applicant asserted that the Authority denied him procedural fairness. The primary judge noted that there were no particulars for, and that the applicant made no submissions in relation to, this ground. In those circumstances the primary judge agreed with the Minister’s submission that the failure to particularise what his Honour described as a “bald assertion” was sufficient for the ground to be dismissed and that the allegation was so broad as to be meaningless: BML19 at [68]-[69].

33    Notwithstanding that, the primary judge found that the conduct of the review before the Authority was subject to the provisions of Pt 7AA of the Act and referred to s 473DA of the Act which provides that Div 3 of Pt 7AA of the Act is an exhaustive statement of the natural justice hearing rule as it applied to the applicant’s matter. The primary judge noted that the Authority was statutorily obliged to consider the review with reference to s 473DB and all of the sections up to s 473DF of the Act and that there was nothing in the evidence before him to indicate that the Authority breached or failed properly to apply those sections. The primary judge was not satisfied that ground two was made out: BML19 at [70]-[71].

34    Accordingly, the primary judge dismissed the application.

The application for an extension of time

35    On 13 November 2020 the applicant filed his application for an extension of time in which to file a notice of appeal together with his affidavit sworn on that date.

36    In his affidavit the applicant explained that his application was dismissed by the Federal Circuit Court on 23 July 2020 and that on the same day he was admitted to St Vincent’s Hospital because of his “mental health condition”. He was released from hospital on 24 September 2020. Given his illness, the applicant was not able to lodge his appeal within the statutory timeframe.

37    At the hearing, the applicant supplemented this evidence by tendering clinical notes from his admission to Prince of Wales Hospital which recorded that: the applicant was admitted to St Vincent’s hospital on 23 July 2020, the date on which the Federal Circuit Court made orders dismissing his application for judicial review and published its reasons, after taking an intentional overdose; that on 7 August 2020 he was transferred to Prince of Wales Hospital; and that he was discharged on 24 September 2020.

38    The applicant annexed a draft notice of appeal to his affidavit in which he raises two grounds, which are the same grounds he raised before the primary judge recorded at [26] above.

39    At the hearing the applicant also provided the Court with a document titled “Statement of Review Applicant” in which he sought to raise an additional ground concerning an alleged failure on the part of the Authority to obtain new information from him pursuant to s 473DC and s 473DD of the Act in relation to his health conditions.

Legal principles

40    Rule 36.03 of the Federal Court Rules 2011 (Cth) requires a notice of appeal to be filed 28 days after the date on which the orders and judgment from which an appeal is sought are pronounced. Rule 36.05 of the Rules sets out the requirements for an application for an extension of time to file a notice of appeal.

41    Rule 1.39 of the Rules provides that the Court may extend time fixed by the Rules after the time expires and whether or not an application for extension is made before the time expires.

42    The principles that apply to the grant of an extension of time are well established. They were recently summarised by a Full Court of this Court (Katzmann, Charlesworth and Burley JJ) in CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 318 at [14]-[18], citing BQQ15 v Minister for Home Affairs [2019] FCAFC 218:

14    First, an application for extension of time will only be granted if it is proper to do so; the legislated time limits are not to be ignored.

15    Second, there must be an acceptable explanation for the delay.

16    Third, any prejudice to the respondent caused by the delay militates against the grant of an extension. On the other hand, the mere absence of prejudice to the respondent is not enough to justify the making of an order.

17    Fourth, the merits of the substantive application are to be taken into account. Leave will not be granted where the appeal has no reasonable prospect of success.

18    Fifth, the purpose of the discretion is to enable the Court to do justice between the parties. Where the delay is short and no injustice will be occasioned to the respondent, justice will normally be done by extending the time. That is especially so 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. But the merits of the appeal are still relevant.

43    In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 178 ALD 573; [2022] HCA 28, a majority of the High Court (Kiefel CJ, Gageler, Keane and Gleeson JJ) in considering the power to extend time conferred by s 477A(2) of the Act, stated at [18] that while the Court will often conduct an impressionistic assessment of the merits of proposed grounds of review, there are circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment, including where a delay is “lengthy and unexplained”.

Consideration

44    The application for an extension of time is opposed by the Minster. Before turning to consider the application in light of the settled principles I note that the Minister accepts that he would suffer no prejudice should an extension be granted and that this factor should be given neutral weight in the exercise of the Court’s discretion to extend time.

Delay

45    As the orders and judgment of the primary judge were pronounced and delivered on 23 July 2020 the applicant was required to file his notice of appeal on or before 20 August 2020. He filed his application for an extension of time on 13 November 2020, some 85 days out of time.

46    The applicant has explained his delay at least until 24 September 2020, when he was discharged from hospital. However, the Minister submits that the applicant has provided no explanation for the subsequent delay in filing i.e., in the period from 24 September 2020 to 13 November 2020. That is so. However, the applicant’s lengthy stay in hospital, corroborated by the discharge notes in evidence before me, provides some explanation for why he might have taken some extra time to in fact file his application. That said it does not explain why the applicant nonetheless took a further 50 days to do so.

47    The applicant was not legally represented before the Federal Circuit Court and in oral submissions explained that he had no legal assistance beyond, it seems, at some point some access to and advice from a volunteer advice centre. A lack of legal assistance may explain why an applicant is unaware of time limits imposed by the Rules, although the applicant has not explained how his lack of legal representation caused his delay in filing.

48    I am satisfied that the applicant has provided an adequate explanation for his delay in filing his application up to a time shortly after his discharge from hospital at the end of September 2020. However, there is no explanation for the period following that time up to the filing of the application on 13 November 2020.

Merit of the proposed grounds of appeal

49    As set out above, in his draft notice of appeal the applicant repeats the grounds included in his application for judicial review before the primary judge. Those grounds are directed towards the Authority’s decision. The applicant has not identified any error in the reasoning of the primary judge in his consideration of the grounds before him.

50    In any event, having regard to the reasons of the primary judge I am not satisfied that there is any arguable error in his Honour’s reasoning, which I have summarised at [29]-[34] above.

51    The applicant has raised a proposed new ground in his Statement concerning s 473DC and s 473DD of the Act. The applicant contends that the Authority should have exercised its power under those sections to obtain new information from him about his medical condition and the Authority fell into jurisdictional error in failing to provide intelligible reasons as to why it did not exercise its discretion under s 473DC and s 473DD of the Act to obtain such further information.

52    This ground was not raised before the primary judge. The applicant would require leave to raise it for the first time on appeal. The Court will grant leave to argue a ground of appeal not raised before the primary judge if it is expedient in the interests of justice to do so and where: the new point sought to be advanced has merit; there is an explanation for the failure to take the point below; and there is no real prejudice to the respondent in permitting it to be agitated: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48].

53    The question of merit of the proposed ground is common both to the question of whether an extension of time should be granted and the question of whether an appellant should be entitled to raise a new ground on appeal.

54    Section 473DC of the Act provides:

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

55    Section 473DD of the Act sets out the circumstances in which the Authority may consider new information.

56    The applicant, who was represented by Playfair at the time, raised his medical conditions both before the delegate and the Authority.

57    Playfair attached two medical reports to their 14 December 2018 Submissions and under the heading “complementary protection” submitted that “[t]he risk of significant harm is faced by our client personally due to his existing health concerns” and noted that the applicant has ongoing medical conditions “such as diabetes and hyperthyroidism”. The first medical report dated 29 October 2018 was from Prince of Wales Hospital addressed to Dr Chitra Pandit. It refers to the applicant’s hyperparathyroidism with surgery recommended to be undertaken in the next six months (although there was a suggestion that it may be delayed and take place in the next 12 months), the diagnosis in November 2017 of migraines and the diagnosis of type II diabetes. The second medical report dated 22 November 2018 was from Dr Pandit, who I infer is the applicant’s general practitioner, and lists the same conditions as well as gastritis and the applicant’s then current medications.

58    As noted above, Playfair provided the 18 March 2019 Submissions to the Authority. Those submissions did not address the applicant’s medical conditions, either those referred to in the earlier 14 December 2018 Submissions and attached medical reports or his mental health condition relied on as a reason for the delay in filing the application now before the Court. Nor was there any request made by Playfair on behalf of the applicant for an interview with the Authority.

59    The Authority addressed the applicant’s health conditions which were the subject of the submissions and evidence before it (see [19] above).

60    At [27] of its reasons it accepted “that the applicant suffers from hyperparathyroidism which has been or is about to be surgically resolved, in addition to headaches/migraines and Type II Diabetes which will be ongoing” and noted that the applicant “takes oral medication for the latter conditions”. It then considered country information about the standard of health care in Bangladesh but did not accept that any inability of the applicant to obtain his necessary medications would be because of his race, religion, nationality, membership of a particular social group or political opinion.

61    At [33] of its reasons the Authority again considered the applicant’s disclosed health conditions in the context of s 36(2)(aa) of the Act and whether there was a real risk that the applicant would suffer “significant harm” as a consequence of being removed from Australia. The Authority concluded that it was not satisfied that there was a real risk of the applicant being unable to access treatment for his health conditions. It is not necessary to set out its reasons for doing so.

62    As is evident, the Authority addressed the health conditions which were the subject of reports and submissions that were before it, there was nothing before the Authority which suggested that the applicant had any other health conditions, including a mental health condition, nothing to suggest that there may be any further relevant material about the applicant’s health conditions which the Authority may wish to consider and no request made by the applicant for an opportunity to provide further information about his health conditions and their effect on his removal to Bangladesh.

63    As a general proposition, Part 7AA of the Act contemplates that the Authority will evaluate for itself the material considered by the delegate and the Authority is not required to notify the referred applicant that it is considering taking a different view, which may be adverse to the referred applicant, of the material considered by the delegate. That is so even if the Authority makes an adverse credibility finding against the referred applicant on the basis of the evidence: see FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456 at [59] (Bromberg, Davies and O’Bryan JJ). There may be circumstances in which it would be legally unreasonable for the Authority to make a finding adverse to the applicant without exercising its powers to seek further information from the applicant: see for example Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 and DPI17 v Minister for Home Affairs [2019] FCAFC 43. However, this is not such a case. That is, any “failure” to obtain new information from the applicant could not be said to be unreasonable.

64    There is no merit to this proposed ground of appeal.

Conclusion

65    Although the applicant has explained a part of his delay in filing his application, given that he has not explained the whole of the period and, moreover, that his proposed grounds of appeal lack merit, I would not extend the time for the applicant to file his notice of appeal.

66    The application for an extension of time should be dismissed. As the applicant has been unsuccessful he should pay the Minister’s costs, as agreed or taxed.

67    I will make orders accordingly.

Associate:

Dated:    23 November 2023