AJC15 v Minister for Immigration and Border Protection

1. The applicant's notice of appeal be treated as if it were an application for an extension of time to seek leave to appeal.
2. The application for an extension of time to seek leave to appeal be dismissed.
3. The applicant pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The applicant has filed a notice of appeal from a judgment of the Federal Circuit Court. The Federal Circuit Court refused an application under r 16.05(2) of the Federal Circuit Court Rules 2001 (Cth) to reinstate the applicant's application for judicial review. That application had been dismissed as a result of the applicant's failure to appear at the hearing. 2 The application for judicial review was in respect of a decision of the Refugee Review Tribunal to affirm a decision of a delegate of the first respondent to refuse a Protection (Class XA) visa. 3 The first respondent submits that the purported appeal is incompetent because the decision of the Federal Circuit Court was interlocutory, and the applicant requires leave to appeal. I accept the submission that the judgment of the Federal Circuit Court was interlocutory, as it did not finally determine the rights of the applicant: cf Hall v Nominal Defendant (1966) 117 CLR 423 at 440; Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 246 at 248. 4 The applicant was required to file an application for leave to appeal within 14 days after the date of the Federal Circuit Court's order. The applicant is self-represented, and his English is poor. He has required the assistance of an interpreter to present his application. In the circumstances, the preferable course is to treat the notice of appeal as if it were an application under r 35.14 of the Federal Court Rules 2011 (Cth) for an extension of time to seek leave to appeal. 5 On 18 May 2015, the Federal Circuit Court ordered that the applicant's application for constitutional writs be dismissed when he failed to appear at the hearing of his application. The order was made pursuant to r 13.03C of the Federal Circuit Court Rules. On 20 October 2015, the applicant filed his application seeking that the order be set aside. Rule 16.05(2)(a) of the Federal Circuit Court Rules provides that the Federal Circuit Court may set aside an order if it is made in the absence of a party. On 7 December 2015, the Federal Circuit Court dismissed the application. The applicant then filed his notice of appeal in this Court on 4 January 2016. 6 In an application to extend the time to seek leave to appeal, the relevant considerations include the length of the delay, the adequacy of the explanation for the delay, any prejudice to the parties and the merits of the proposed application for leave to appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9; SZSPR v Minister for Immigration and Border Protection [2013] FCA 1210 at [16]; Zheng v Minister for Immigration and Border Protection [2015] FCA 989 at [15]. In an application for leave to appeal, the principal considerations are whether the judgment from which leave to appeal is sought is attended with sufficient doubt to warrant it being set aside and whether substantial injustice would result, supposing it to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. 7 The length of the delay is not substantial. It may be inferred that the filing of the wrong initiating process and its filing out of time was caused by the applicant's lack of legal knowledge and difficulties negotiating the Australian legal system. The Minister does not assert any prejudice as a result of the delay. In the circumstances, the decisive issue is the merit of the proposed appeal. 8 The primary judge referred to the standard considerations relevant to an application such as that made by the applicant. Those considerations include the explanation for the failure of the applicant to attend the hearing, the explanation for the delay between the dismissal and the application to set aside the order for dismissal, any prejudice to the parties and the merits of the applicant's substantive application: Hunter Valley Developments v Cohen at 348-9. His Honour accepted that the applicant had not been notified of the hearing date and that he had a reasonable excuse for failing to attend the hearing. However, his Honour did not accept that there was an adequate explanation for the delay in filing the application to set aside the order dismissing the application. His Honour noted that the Minister did not assert any prejudice that could not be cured by an order for costs. 9 His Honour then turned to the merits of the application for constitutional writs. The primary judge noted that the applicant's grounds were broad and unparticularised. His Honour, nevertheless, considered the Tribunal's reasons to see whether any of the applicant's grounds might be made out. 10 The applicant is a citizen of Sri Lanka. He claimed before the Tribunal that he fears persecution as a Tamil and a Hindu, as a person perceived to have links with the LTTE, as a failed asylum seeker and as a person who left Sri Lanka illegally. The Tribunal found that the applicant was not of interest to the authorities because of any perceived connection with the LTTE when he left Sri Lanka, and there was no real chance that he would face persecution if he returns. It found that he faces no real chance of persecution on the basis of his Tamil ethnicity and Hindu religion, or as a failed asylum seeker. It found that he may be detained for a short time on his return as a person who departed Sri Lanka illegally, but that such detention would not be for a Convention reason. The Tribunal rejected the applicant's claims for protection and complementary protection. 11 The Federal Circuit Court was unable to identify any arguable case of jurisdictional error on the part of the Tribunal. In particular, the primary judge said that it was difficult to see that the Tribunal failed to observe the requirements of procedural fairness, or that the Tribunal made an error of law, or that there was any relevant consideration which the Tribunal was bound to take into account and did not. The primary judge dismissed the application because the applicant was unable to demonstrate any reasonable prospects of success in his substantive application. 12 The judgment of the Federal Circuit Court involved an exercise of discretion. The applicant is required to demonstrate an error of the type described in House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ): It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 13 The applicant's proposed grounds of appeal are as follows: 1. The Honourable Court and Judge erred in law and/or in fact in refusing and/or failing to grant the Appellant's application to set aside the orders made on 18 May 2015; 2. The Honourable Court and Judge erred in law and/or in fact in refusing and/or failing to reinstate the Appellant's application filed 2 April 2015; 3. The Honourable Court and Judge erred in law and/or in fact by summarily dismissing the claims and evidence of the Appellant without conducting a proper inquiry into the Appellant's claims and evidence; 4. The Honourable Court and Judge erred in law and/or in fact by taking into account irrelevant facts, material and evidence and failed to take into account relevant facts material and evidence; 5. The Appellant was denied natural justice and/or a fair and/or a proper hearing; 6. The Honourable Court and Judge erred in law and/or in fact by awarding costs against the Appellant; 7. Such further or other grounds that the Appellant may be entitled to present before the Court upon a receipt of a written copy of the reasons of the Honourable Court and Judge in due course. 14 The grounds are expressed in the most general way. The applicant did not further articulate those grounds in oral submissions, except in one respect. He claims that when he gave evidence by video link before the Tribunal there were problems with the connection so that he was unable to present his case properly. He also claims that the standard of interpretation in the Tribunal was inadequate. These claims appear to amount to a contention that he was denied procedural fairness. These claims were not raised before the Federal Circuit Court. They have been raised at a very late stage in this hearing and are not supported by any evidence, other than the applicant's bare assertions. Even if there was admissible evidence supporting these claims it would not demonstrate any error on the part of the Federal Circuit Court, the claims not having been raised before that Court. 15 The applicant also asserted in oral submissions that he had been provided with inadequate legal advice by the lawyers representing him before the Tribunal. Apart from those matters, the applicant's submissions were confined to saying that he was not satisfied with the result before the Tribunal, restating the case he made before the Tribunal and referring to some new claims about events in Sri Lanka that he says his lawyers told him not to raise before the Tribunal. 16 I can identify no error of law or fact in the judgment of the primary judge. There is no substance in the assertion that the Federal Circuit Court failed to conduct a proper inquiry into the applicant's claims in evidence. That ground seems to treat the Federal Circuit Court as if it had the same role as the Tribunal, but the Court was required to consider the merits of the proposed appeal only for the purpose of identifying whether there was at least an arguable case of jurisdictional error by the Tribunal. The Court did not fail to take into account relevant facts, material or evidence into account or take irrelevant facts, material or evidence into account. There was no error in awarding costs against the applicant. 17 The applicant has been unable to demonstrate any arguable case of error on the part of the primary judge and, for this reason, the application for an extension of time to seek leave to appeal will be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.