AMU17 v Minister for Home Affairs

1. The application filed 20 July 2018 is dismissed.
2. The applicant pay the first respondent's costs of and incidental to that application, to be assessed failing agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 The applicant is a citizen of Vietnam. He arrived in Australia on 8 April 2013. On 25 June 2014, he lodged an application for a permanent protection visa (Class XA). A delegate of the then Minister for Immigration and Border Protection (now the Minister for Home Affairs) refused that application on 16 December 2014. 2 On the same date as the delegate refused the applicant's application, reg 2.08F of the Migration Regulations 1994 (Cth) came into effect. The operation of that regulation is the subject of the first of the applicant's draft grounds of appeal. His second draft ground of appeal is directed to a number of aspects of the decision of the Administrative Appeals Tribunal (the Tribunal) made on 23 December 2016. On that date, the Tribunal set aside the delegate's decision with respect to the applicant's Class XA protection visa and, relying upon reg 2.08F, substituted a decision refusing to grant him a Class XD protection visa. 3 Following the Tribunal's decision, the applicant made a successful judicial review application to the Federal Circuit Court of Australia. The details of that application and judgment are immaterial for present purposes. What is material is the applicant's subsequent unsuccessful judicial review application: see AMU17 v Minister for Immigration and Anor [2018] FCCA 844. It is that judgment to which the applicant's present draft notice of appeal relates. The applicant's notice of appeal is in draft form because he failed to file his appeal against the Federal Circuit Court judgment within the 21 days' time limit set by r 36.03 of the Federal Court Rules 2011 (Cth) (the Rules). 4 The Federal Circuit Court judgment was delivered ex tempore on 14 March 2018 and the written reasons were published on 11 April 2018: [2018] FCCA 844. The applicant filed his present application for an extension of time in which to file his draft notice of appeal on 20 July 2018. Depending upon whether it is calculated from the date upon which the ex tempore judgment was delivered, or the date upon which the written reasons for that judgment were published, the applicant's application was therefore filed between 79 days (approximately 11 weeks) and 107 days (approximately 15 weeks) beyond the 21 days' time limit mentioned above. 5 The primary consideration in an application of this kind is whether it is in the interests of justice to grant the extension of time. Noting that this is a discretionary decision, the factors that guide the exercise of it are relatively well-established. They were considered most recently in the context of an appeal involving an application under the Migration Act 1958 (Cth) in SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 (SZTRY) per Flick, Griffiths and Perry JJ. At [6] of that judgment, the Court said they were: "whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent albeit that the mere absence of prejudice is not sufficient". 6 As for the last of these factors, the Minister does not claim to be prejudiced by this application. Nonetheless, as was observed in SZTRY above, that is not a sufficient reason, by itself, to grant the applicant an extension of time. 7 A delay of between 11 and 15 weeks is plainly a significant factor in this application. It is the kind of delay that calls for a frank and detailed explanation from the applicant. 8 The applicant's attempt to provide that explanation was contained in two affidavits; one made by the applicant himself and the other made by his interpreter, Ms Bui. The timing of these two affidavits is worth mentioning. The applicant's affidavit was filed simultaneously with this application. Ms Bui's affidavit was filed, by leave, at the hearing of the application. 9 In essence, the applicant's affidavit was confined to the fact mentioned above: that the Federal Circuit Court's written reasons for judgment were not published until 11 April 2018. Curiously, given that it constituted the only explanation offered at the time of his application, no explanation was provided as to what steps were taken with respect to an appeal in the period between 14 March 2018 and the receipt of those reasons on 11 April 2018. Equally curiously, the applicant offered no explanation as to why it took another 11 weeks, approximately, after 11 April 2018 to file the present application. 10 Ms Bui's affidavit was a little more informative. She said that she communicated with Mr Williams (the applicant's counsel) about the applicant's instructions to proceed with an appeal on 26 April 2018. She said that she received the appeal documents from Mr Williams on 16 May 2018 so that she could translate them for the applicant. Thereafter, she explained that there was "a breakdown in communication and the documents were not filled out or signed correctly" until 20 July 2018. She blamed this breakdown on the fact that the applicant was located in Christmas Island, Mr Williams was located in Sydney and she was located in Victoria. 11 However, Ms Bui did not provide any further details as to why this communications breakdown had caused more than two months' delay between May and July 2018. Furthermore, as with the applicant's affidavit, she also did not explain why the initial delays occurred between 14 March 2018 (when the judgment was delivered) and 11 April 2018 (when the reasons for judgment were published); or between those dates and 26 April 2018 (when the instructions were received to proceed with an appeal). Nor did she provide an explanation as to why almost three weeks elapsed between 26 April 2018 and 16 May 2018, when the appeal documents were finally prepared. 12 The applicant's counsel, Mr Williams, sought to add to this affidavit material by stating from the Bar table that he was on leave for two weeks during the period in question. Ms Watson, for the Minister, objected to any reliance being placed on this statement, but even if it were to be relied upon, it only explains a small fraction of the overall delay. 13 For the reasons that follow, I do not consider this material comes close to providing the kind of frank and detailed explanation that is required from the applicant in the circumstances of the significant delay that has occurred in this matter. 14 To begin with, it is not in dispute that Mr Williams was present when the Federal Circuit Court Judge delivered his ex tempore judgment on 14 March 2018 dismissing the applicant's judicial review application. Additionally, a comparison of the grounds of appeal in the applicant's draft notice of appeal with those set out in his judicial review application before the Federal Circuit Court reveals that they are expressed in almost identical terms. Consequently, the legal foundation for the applicant's appeal to this Court must have been apparent to Mr Williams on 14 March 2018, or shortly thereafter. That being so, Mr Williams must have been in a position to advise his client about his prospects in an appeal to this Court on 14 March 2018, or shortly thereafter. Hence, even allowing for communications and language difficulties, the steps required to translate and convey that advice to the applicant and to obtain his instructions to proceed with an appeal must have been achievable within a matter of days, or at the most, weeks. Once those instructions were received, and even allowing for the difference in Court forms, replicating the applicant's grounds of judicial review as the grounds in a notice of appeal to this Court should have been achievable in a matter of days, or at the most a week. That is to say, in the circumstances outlined above, it should have been quite possible to comply with the 21 days' time limit set by the Rules. 15 Against this set of events and circumstances, nothing has been advanced by, or on behalf of, the applicant to explain why the abovementioned advice was not promptly conveyed to him soon after 14 March 2018. Furthermore, beyond the vague reference to a communications breakdown, no explanation has been given as to why the instructions to pursue this appeal could not have been obtained until 26 April 2018. Further still, beyond the same vague reference to a communications breakdown, no explanation has been advanced as to why it took almost three weeks, namely until 16 May 2018, to produce the draft notice of appeal. As has been mentioned above, since the grounds in the notice of appeal are in almost identical terms to the grounds of review before the Federal Circuit Court, this process should have been achievable in a matter of days, or at the most a week. Finally, beyond the same vague references, no attempt has been made to explain why it then took a further two months after 16 May 2018 to file the present application. 16 All of these deficiencies demonstrate why the applicant has failed to provide a frank and detailed explanation for his significant delay in this matter. Accordingly, in the absence of that frank and detailed explanation, I do not consider it would be in the interests of justice to grant him the extension of time he seeks. This conclusion is reinforced by the fourth factor above: his proposed appeal is, in my view, devoid of merit. I will briefly explain why that is so, noting that this explanation should not descend into too much detail (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 per Mortimer J at [25] and the authorities there cited). 17 First, despite the applicant's contentions to the contrary, the effect of reg 2.08F was, as the primary judge correctly explained: "… at the same time as making the application for the Class XA visa invalid, the regulation made the same application a valid application for a Class XD visa. Such an application was an application for a protection visa" (see [2018] FCCA 844 at [4]). Accordingly, as the primary judge then went on to observe: "That means that the decision of the delegate was, in fact, a decision to refuse a protection visa" (see [2018] FCCA 844 at [5]). And finally, as the primary judge then correctly proceeded to point out, by reference to two authorities, since the Tribunal had the power with respect to a Pt 7 reviewable decision to set aside the decision under review (to refuse a Class XA visa) and to substitute in its place its own decision (to refuse a Class XD visa: see at [2] above), the Tribunal had acted within its powers in this matter (see [2018] FCCA 844 at [6]-[9]). There is, in my view, no relevant error apparent in any of these conclusions. 18 I also do not consider the primary judge made any error in concluding that the Tribunal had not committed any jurisdictional error in its decision with respect to the second ground of review before the Federal Circuit Court, that: "there was insufficient logical or evidentiary basis for the decision by the Tribunal to affirm the decision by the delegate to deny the applicant a protection visa". As has already been mentioned above, that ground of review before the Federal Circuit Court is essentially identical to the applicant's second draft ground of appeal before this Court. Without reviewing all of the arguments made with respect to each of the four particulars provided in support of this ground, most of which comprised a thinly veiled attempt at impermissible merits review (see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at [29]-[30]), it will suffice to say that I consider the primary judge correctly identified the logical and/or evidentiary basis for each of the conclusions the Tribunal reached in rejecting each of those four items of particulars (see [2018] FCCA 844 at [15]-[36]). In that process, I do not consider either the Tribunal, or the primary judge, made any relevant error. 19 For these reasons, I do not consider that the applicant has established that it is in the interests of justice to allow him an extension of time within which to file a notice of appeal against the primary judge's decision. 20 The orders will be: