ACA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

federal Circuit Court Decision 18 In his application before the Federal Circuit Court, the applicant advanced one ground of judicial review, being that the Authority had denied the applicant procedural fairness. The applicant identified two ways in which the Authority had failed to afford him procedural fairness. 19 First, the applicant submitted that the Authority had denied him procedural fairness in that it refused to consider his request to make submissions that were more than five pages in length. 20 Second, the applicant submitted that the issuance of the Practice Direction by the President of the Authority was beyond the power in s 473FB of the Act. 21 The primary judge rejected both grounds of review. At J[29], the primary judge referred to a decision of the Full Court of the Federal Court in which the validity of the Practice Direction was upheld: DGZ16 v Minister for Immigration and Border Protection and Another (2018) 258 FCR 551; [2018] FCAFC 12 (DGZ16) at [107] (Reeves, Robertson and Rangiah JJ). The primary judge otherwise concluded that there had been no denial of procedural fairness (at J[29]-[30]) and no practical injustice (at J[31]).

Application for extension of time 22 On 31 December 2019, the applicant filed an application for an extension of time to file a notice of appeal relating to the orders of the primary judge (Application). The Application was filed approximately one month out of time: r 36.03 of the FCR. 23 As the respondent submits, to be granted an extension of time pursuant to r 36.05 of the FCR, the Court will be guided by the following factors: the length and explanation of the delay; any prejudice the respondent might suffer due to the delay (albeit that the mere absence of prejudice is not sufficient to justify the grant of an extension); and the merits of the substantial application if an extension was granted: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186 at 348-9 (Wilcox J); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ). The proposed appeal should have sufficient prospects of success to make it just that the prospective appellant be permitted to proceed with it: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9] (Lee, R D Nicholson and Finkelstein JJ). If an appeal has no prospects of success, an extension of time, even for a short period, may be refused: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] (Murphy J), citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] (Jessup J, with whom Gyles and Besanko JJ agreed); SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] (Flick J). 24 The applicant contends in the Application that he is "totally illiterate" and that he was "waiting for judgment email" from the Court. On 31 October 2019, the primary judge made orders dismissing the application for judicial review and delivered ex tempore reasons for judgment. There was no evidence before me, or any suggestion from the applicant himself, that he had any assistance from any legal representative in relation to his proposed appeal from the primary judge's orders. The primary judge's written reasons for judgment were ultimately not published until 20 January 2020, after the applicant filed his application for an extension of time. 25 In the circumstances, it might reasonably be inferred that the applicant had at least initially been awaiting the Federal Circuit Court's written reasons before deciding to commence an appeal in this Court. 26 The Minister accepts that the applicant has provided "some explanation" for his delay in commencing the appeal. I do not consider that the delay itself was material and the Minister accepts that he will not be prejudiced by the grant of an extension of time. 27 The Minister submits, however, that the extension of time sought in the Application should be refused, in that even on an impressionistic assessment, the appeal does not enjoy sufficient prospects of success to warrant an extension: MZABP v Minister for Immigration and Border Protection and Others (2015) 242 FCR 585; [2015] FCA 1391 at [62] (Mortimer J) citing Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25] (Mortimer J); Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [7]-[9] (Brennan CJ and McHugh J).

Consideration 28 I am satisfied that the explanation provided by the applicant for the delay in taking steps to institute the appeal from the orders of the primary judge, the comparatively short length of that delay and the absence of any specific prejudice to the Minister arising from that delay all weigh in favour of granting the extension of time to file the notice of appeal as sought in the Application. 29 It is also necessary, however, to consider the prospects of the proposed appeal succeeding if an extension of time is granted. 30 The draft notice of appeal does not articulate any error in the primary judge's reasons. Rather, it appears to extract a part of the Minister's written submissions filed in the proceedings before the Federal Circuit Court. The proposed grounds of appeal are stated to be: 1. The applicant advances one ground in his application for judicial review filed on 6 January 2017. He contends that the Authority denied him procedural fairness in that it refused to consider his request to make submissions that were more than five pages in length. He also appears to contend that the making of the Practice Direction by the President of the Authority was beyond the power given in s.473FB of the Act. 2. For the reasons set out below the ground advanced by the applicant fails to identify error in the Authority's decision FORMTEXT 31 The hearing of the Application before me proceeded on the basis that the applicant maintains the grounds he advanced in the Federal Circuit Court in seeking to establish jurisdictional error in the Authority's reasons and that the primary judge had erred in failing to find jurisdictional error and in dismissing the applicant's application for judicial review. 32 The applicant appeared in person at the hearing of the Application before this Court with the assistance of an interpreter. The applicant did not provide any written submissions. At the conclusion of the oral submissions by counsel for the Minister, I explained to the applicant the nature of the hearing before me and I invited the applicant to address me on the two jurisdictional error grounds that he had advanced before the primary judge. The applicant's oral submissions were limited to statements that he was unable to go back to Pakistan because of Pakistani and Afghani Taliban, that he "has fear for my life - not - for my family members as well" and "What should I say? There is no more solution if unable to give me permanent visa. At least I am requesting you to give me a bridging visa". 33 For the reasons that follow, I consider that the primary judge was correct to reject each of the two contentions alleged to give rise to jurisdictional error advanced before him. I first address the contention that the issuance of the Practice Direction was "beyond power" and then the denial of procedural fairness contention relating to the applicant's alleged request to make submissions in excess of five pages.

Power of President to issue Practice Direction 34 The primary judge was correct in finding that the issuance of the Practice Direction was not beyond the power given to the President of the Authority pursuant to s 473FB of the Act. 35 Section 473FB relevantly provides: (1) The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to: (a) the operations of the Immigration Assessment Authority; and (b) the conduct of reviews by the Authority. (2) Without limiting subsection (1), the directions may: (a) relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or (b) set out procedures to be followed by persons giving new information to the Authority in writing or at interview. 36 As the Full Court of the Federal Court concluded in DGZ16 at [107] (Reeves, Robertson and Rangiah JJ), the issuance of the Practice Direction, in particular insofar as it purports to limit written submissions to no more than five pages, is not inconsistent with ss 473DC or 473DD of the Act, nor is it an unreasonable exercise of the President's statutory power to issue directions pursuant to s 473FB. 37 The Full Court stated in DGZ16 at [106]: In our opinion the evident or intelligible justification for the submission being no longer than five pages is to encourage, legitimately, submissions that are concise. 38 The Practice Direction also does not impact on the ability of the Authority to obtain further documents, or inhibit an applicant in addressing the issues in his or her case: DGZ16 at [103]-[104]. The five page limit applies to submissions, not any new information on which the applicant may seek to place before the Authority, and an applicant can seek permission to make a submission that was longer than five pages: DGZ16 at [99] and [102].

Denial of procedural fairness 39 The primary judge was also correct not to accept the applicant's contention that he was denied procedural fairness by reason of any failure to waive the five page submission limit. 40 First, any failure by the Authority to accede to or respond to any request made by the applicant to provide submissions in excess of five pages could not constitute a denial of procedural fairness. Section 473DA provides that Division 3 of Part 7AA of the Act that provides for a fast track review process in relation to certain protection visa applications, together with ss 473GA and 473GB of the Act, is an "exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Review Authority". Accordingly, the failure to comply with the Practice Direction in the manner alleged by the applicant does not give rise to a breach of procedural fairness. 41 Second, while it was open to the applicant to request that the Authority permit him to make a submission that was longer than five pages, the applicant did not appear to make any such request. The specific request made by the applicant's representative in the Submissions was that the Authority "allow us to do full submission providing sufficient country information with our legal submission". This request needs to be considered in the context of the earlier explanation in the Submissions that the applicant was only providing "relevant links of country information" because of the five page limit on submissions. The "full submission" would thus appear to be a request to supplement the "legal submission" by providing copies of the country information, rather than only providing a list of the links to that information in the Submissions. 42 Third, in any event, I am not satisfied that there was any practical injustice to the applicant attributable to the Authority's decision not to respond to the request in the Submissions to "allow us to do full submission providing sufficient country information with our legal submission". The Authority reviewed the internet links to the country information and identified the topics that were addressed. The Authority concluded that none of the information post-dated the Delegate's decision on 11 October 2016 and that there was: [A] range of recent and credible information before the delegate addressing the risks faced by Shias in Pakistan, including the Turi Shias from Parachinar, sectarian violence in Pakistan, agents of violence in Pakistan, and the security situation in Parachinar, Kurram Agency and Pakistan in general. 43 Accordingly, the primary judge was correct to find no denial of procedural fairness in this case. 44 In the circumstances, neither of the two proposed grounds of review inferred to be sought to be advanced in the draft notice of appeal have sufficient prospects of success to warrant an extension of time for the applicant to file a notice of appeal in relation to the orders made by the primary judge.

Disposition 45 The application for an extension of time should be dismissed, with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.