consideration and resolution of the application
47 The principles relevant to the exercise of discretion to grant an extension of time are well-established and do not need to be rehearsed in detail: see, for example, BAO15 v Minister for Immigration and Border Protection [2016] FCA 214; 151 ALD 352 at [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. The length of the delay in filing the application is a relevant consideration and an applicant must generally give an adequate explanation for the delay. Any prejudice to the respondent would also militate against the grant of an extension of time, though the absence of such prejudice alone would generally not, without more, justify an extension.
48 The merits of the substantive appeal, if an extension were granted, must also be considered. It will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62]; approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478 at [38].
49 Where the application for an extension of time is in respect of the filing of an application for leave to appeal, it is also necessary to have regard to the principles applicable to the grant of leave to appeal: see Hunter Valley Developments at 348-350; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; Marsden v The Queen [2002] FCAFC 229 at [19]; Parker v The Queen [2002] FCAFC 133 at [17]. The test for the grant of leave to appeal from an interlocutory decision is that the decision is attended with sufficient doubt to warrant it being reconsidered by an appellant court and that substantial injustice would result if leave were to be refused supposing the decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400. The question on an application for an extension of time and leave to appeal is whether there are reasonable prospects of that test being satisfied to warrant an extension of time.
50 There are a number of fundamental problems with the applicant's application for an extension of time and leave to appeal.
51 First, Judge Street's decisions, on 11 November 2019, to refuse the applicant's adjournment application and dismiss the applicant's application pursuant to r 13.03C(1)(c) of the Circuit Court Rules on the basis of his non-appearance, were plainly interlocutory decisions in respect of which leave to appeal was required: r 35.14 of the Federal Court Rules 2011 (Cth). An application for leave to appeal was required to be filed within 14 days, that is to say, by 25 November 2019: r 35.13(a) of the Rules. No attempt was made to file an application for leave to appeal until 14 February 2020, when an application was lodged with the Court together with an application that the applicant be exempted from paying a filing fee. That exemption application was subsequently withdrawn. A further attempt was made to file the application for leave to appeal on 4 March 2020. The application was not accepted for filing because it was out of time. The application for an extension of time and leave to appeal was eventually filed on 6 March 2020, 116 days late.
52 The applicant made no attempt to explain why he made no attempt to file an application for leave to appeal until 14 February 2020, which was itself 81 days after the date by which the application was required to be filed. The reason for that significant delay would appear to be that, instead of filing an application for leave to appeal, the applicant chose to file applications in the Circuit Court for the reinstatement of his application pursuant to r 16.05(2)(a) of the Circuit Court Rules. If that is the explanation for the delay, it is neither a reasonable nor satisfactory explanation. Indeed, quite to the contrary. It was a deliberate and ultimately unfortunate forensic decision.
53 There was a further delay after 14 February 2020 which made matters worse. That delay seems to have been largely the product of what appeared to be a fairly half-hearted and ultimately unsuccessful attempt to be exempted from paying a filing fee and an error on the part of the applicant's solicitor. That explanation for the delay is again entirely unsatisfactory and inadequate. The total delay was 116 days.
54 The applicant's failure to provide a reasonable or satisfactory explanation for the delay in filing the application for leave to appeal would itself be a reason to refuse the application for an extension of time and leave to appeal from the 11 November 2019 judgment.
55 Second, there has similarly been no satisfactory explanation for the failure to file any application for leave to appeal from Judge Street's dismissal of the reinstatement application on 30 January 2020. While the applicant attempted to file an application for leave to appeal on 14 February 2020, which if accepted for filing may have been within time, that application did not include any application for leave in respect of the 30 January 2020 decision. The application was subsequently amended to include an application for leave to appeal in respect of that decision. In any event, the delay which occurred after 14 February 2020 was the product of the applicant's aborted attempt to be exempted from the filing fee and the mistaken belief by Mr Draper that his attempt to file an application on 14 February 2020 operated to suspend or interrupt the running of the 14-day period within which such an application was required to be filed. That is hardly a satisfactory explanation.
56 Third, and perhaps more fundamentally, the applicant has failed to demonstrate an arguable case that Judge Street erred in the exercise of his discretion to refuse the applicant's adjournment application on 11 November 2019, or erred in the exercise of his power under r 16.05(2)(a) of the Circuit Court Rules to dismiss the applicant's substantive application by reason of his non-appearance. The problems with the applicant's challenge to the decisions made on 11 November 2019 are manifest.
57 It would appear that the adjournment application was unsupported by evidence. While Mr Draper may have made various factual assertions from the Bar table, those assertions did not constitute evidence and, in any event, there was no evidence in this proceeding as to exactly what those assertions were. It is equally unclear exactly what submissions Mr Draper advanced in support of the adjournment application and what reasons Judge Street gave for rejecting those submissions and refusing the adjournment application.
58 While the applicant perhaps cannot be blamed for the fact that Judge Street did not publish any reasons for refusing the adjournment application, the applicant could at least have tendered the transcript of the proceedings on 11 November 2019 or otherwise adduced evidence, through Mr Draper, as to exactly what went on at the hearing on that day. The evidence adduced through Mr Draper in support of this application was woefully inadequate in that regard. It is difficult to see how the Court could possibly conclude that Judge Street's discretion miscarried in this evidentiary vacuum.
59 The applicant's submissions concerning the decisions made on 11 November 2019 appeared to proceed on the basis that Judge Street was in effect bound to accept that the applicant was unable, as opposed to unwilling, to pay Mr Draper's firm's fees and bound to accept that Mr Draper's apparent unwillingness to continue to represent the applicant in those circumstances provided a proper basis for the adjournment application. Judge Street was not, however, obliged to accept either of those propositions, particularly in the absence of any evidence. The apparent failure of the applicant to adduce any evidence in support of the adjournment application is all the more surprising given that the Minister had clearly indicated that an adjournment application made on those grounds would be opposed. As already indicated, it is unclear what, if any, additional grounds were advanced by Mr Draper in support of the adjournment application.
60 The authorities relied on by the applicant in respect of adjournment applications are distinguishable and do not assist him. Since the applicant, despite being represented by senior counsel, did not deign to take the Court to any of the authorities he listed in his written submissions, or attempt to develop his submissions based on the principles said to be established by those authorities, it is unnecessary to cite or specifically address the authorities. It suffices to note that it is well-established that the decision to grant or refuse an adjournment application is a discretionary decision involving the balancing of often competing considerations. There are many cases where a decision to refuse an adjournment application has been found to involve an erroneous exercise of the discretion for various reasons. This, however, is not such a case. The applicant has not advanced any, let alone any compelling, reasons for why it should be found that Judge Street's exercise of the discretion miscarried or that the decision to dismiss the adjournment application was otherwise erroneous.
61 Fourth, the applicant has also not demonstrated any arguable case that Judge Street erred in dismissing his substantive application pursuant to r 13.03C(1)(c) of the Circuit Court Rules once Mr Draper was given leave, on his application, to withdraw from the proceeding. It is clear that the applicant did not himself appear at the hearing. The result was that, once the adjournment application was refused and Mr Draper was given leave to withdraw, there was no appearance for or by the applicant.
62 The applicant's failure to appear may have been because, as was effectively conceded by senior counsel for the applicant at the hearing of this application, the applicant erroneously assumed that Judge Street would allow the adjournment application that was to be made on his behalf. Putting that possible explanation to one side, the more significant point is that there was no evidence whatsoever before Judge Street to explain why the applicant was not at the hearing. It is readily apparent that the applicant was aware of the hearing date, was aware that his solicitor had requested that he be put in funds for the purposes of the hearing, was aware that he had not put his solicitor in funds and was likely aware that, in those circumstances, his solicitor was not prepared to continue to act for him. In the absence of any evidence from the applicant himself, it is difficult to avoid the inference that he made a conscious decision not to attend the hearing, even though he knew that his solicitor may not continue to appear for him.
63 It was, in all the circumstances, open to Judge Street to dismiss the applicant's review application pursuant to r 13.03C(1)(c) of the Circuit Court Rules on the basis that he did not appear at the hearing. The only argument advanced on the applicant's behalf as to why Judge Street erred in dismissing the application on the basis of his non-appearance was that the effect of the dismissal was that his application was not determined on its merits. That, however, is likely to be the outcome of most, if not all cases, that are dismissed pursuant to r 13.03C(1)(c) of the Circuit Court Rules on the basis of non-appearance.
64 As was adverted to earlier, it is somewhat troubling that the applicant, or Mr Draper on his behalf, apparently did not put to Judge Street that he should determine the applicant's application on the basis of the evidence that was adduced and the submissions that were made before Judge Lucev. That course would plainly have been preferable to the course taken by Mr Draper, which was to seek leave to withdraw. It is perhaps equally troubling that, even in the absence of such an application, Judge Street did not turn his mind to whether that was the proper, or more appropriate, course to take, as opposed to summarily dismissing the application.
65 As troubling as that may be, however, it does not provide a sound basis for the grant of leave to appeal, particularly since this was not a point that was taken by the applicant in support of this application. Nor was it supported by any evidence, including evidence of exactly what went on at the hearing of 11 November 2019, or evidence from Mr Draper as to why he applied for leave to withdraw, rather than simply submitting that Judge Street should decide the matter on the basis of the material that was before Judge Lucev. It is entirely unclear exactly what Mr Draper's instructions were on 11 November 2019. It may even be the case that Mr Draper was instructed not to request Judge Street to proceed on the basis of the material that was before Judge Lucev.
66 Unfortunate as this may be, the applicant is effectively bound by the actions of his solicitor on 11 November 2019. Of course, it would also have been open to the applicant to himself appear at the hearing and request Judge Street to decide his case on the basis of the evidence that was adduced and the submissions that were made before Judge Lucev. That also was not done.
67 Perhaps more significantly, there would in any event be an element of futility in granting leave to appeal on this basis. That is because, as discussed in more detail later, there is no apparent merit in either of the applicant's grounds for reviewing the Authority's decision.
68 Fifth, in circumstances where the applicant has not demonstrated any error on the part of Judge Street in refusing the adjournment application and dismissing his application pursuant to r 13.03C(1)(c) of the Circuit Court Rules, his contention that Judge Street denied him procedural fairness has no merit.
69 The general authorities relied on by the applicant in respect of his contention that he was denied procedural fairness are distinguishable and do not assist him. Once again, the applicant's written submissions simply included a list of cases. Senior counsel for the applicant did not take the Court to any of those cases, let alone explain how the principles in them advanced the applicant's case. In those circumstances, it is again unnecessary to specifically address the authorities referred to in the written submissions. It suffices to observe that there are no doubt many cases where a person has been found to have been denied procedural fairness because, through no fault of their own, they were not able to attend a hearing to present their case to a court or tribunal. This, however, was not such a case. The applicant initially appeared, through his solicitor, and applied for an adjournment. That application was refused and the solicitor was granted leave to withdraw. The applicant did not himself appear at the hearing. There was no evidence and evidently no explanation for the applicant's non-appearance. It was in those circumstances that the applicant's substantive application was dismissed pursuant to r 13.03C(1)(c) of the Circuit Court Rules. The summary dismissal of the applicant's application was effectively of the applicant's own making and was not the result or product of any denial of procedural fairness.
70 Sixth, the applicant has not demonstrated that he has an arguable case that Judge Street erred in not reinstating his application pursuant to r 16.05(2)(a) of the Circuit Court Rules. The grounds or arguments that the applicant put to Judge Street as to why his application should be reinstated are unclear. The application itself did not articulate any grounds. It simply indicated that the application was supported by an affidavit sworn by Mr Draper. That affidavit, however, did nothing more than provide a very basic chronology of the events leading up to the adjournment application on 11 November 2019 and provide an explanation for Mr Draper's failure to appear at the hearing of the first reinstatement application. It was, and is, particularly telling that the applicant did not himself swear an affidavit in support of his reinstatement application. Had he done so, he could have explained, amongst other things, why he had not put his solicitor in funds so he could be represented at the hearing on 11 November 2019, what he believed might happen if he did not put his solicitor in funds and why he had not attended the hearing on 11 November 2019.
71 The applicant's submission that Judge Street erred in finding that the applicant deliberately failed to appear at the hearing on 11 November 2019 because that finding was not open on the merits cannot, in the circumstances, be accepted. While it may be a somewhat harsh and unsympathetic finding, it is nonetheless a finding which was open to his Honour given the absence of any evidence from the applicant and the absence of any meaningful or material evidence from Mr Draper. The correspondence that was annexed to Mr Draper's affidavit clearly demonstrated that the applicant knew that the matter was listed for hearing on 11 November 2019. It also provided a basis for inferring that the applicant knew that his solicitor may not appear for him if he did not put him in funds for the hearing and knew that the Minister opposed, or was likely to oppose, the foreshadowed adjournment application. In the absence of any evidence from the applicant, it was open to Judge Street to infer from the evidence that was before him that the applicant's failure to appear at the hearing was deliberate.
72 The applicant's submission that Judge Street applied a wrong test in assessing whether the two review grounds in the applicant's substantive application had any prospect of success has no merit and is rejected. The expression "impressionistic level", which was employed by Judge Street, would appear to have been drawn from the judgment of Mortimer J in MZABP at [62] to describe the level of analysis which is generally necessary when considering the prospects of success of a potential appeal for the purposes of an application for leave to appeal or an extension of time. In short, the Court generally should assess the prospects of success at a broad or general level, rather than conduct a summary hearing of the appeal or descend into a full consideration of the arguments for and against the appeal.
73 The applicant appeared to contend that, while Judge Street indicated that he was assessing the prospects of success at an impressionistic level, he in fact effectively required the applicant to make out his case, or demonstrate that he would succeed if his application was reinstated. There is, however, no basis for that contention. It is tolerably clear from Judge Street's reasons that his Honour approached the merits of the proposed application at a more general level and did not descend into a full consideration of the arguments for and against the two grounds advanced by the applicant. His Honour found that the two grounds lacked sufficient prospects of success to warrant the reinstatement of the application: Judgment at [16]. Indeed, he effectively found that both grounds had no prospects of success and were hopeless or doomed to fail: Judgment at [17]-[19].
74 His Honour did not, as contended by the applicant, suggest that to obtain a reinstatement of proceedings, the applicant was required to demonstrate that he would succeed, or even that he was likely to succeed, in respect of his grounds of review. He simply required the grounds to be reasonably arguable.
75 Seventh, the applicant did not even attempt to demonstrate, in support of this application, that either of his grounds of review in his substantive application were reasonably arguable. Given the absence of any argument from the applicant in relation to the merits of his two grounds of review in the Circuit Court, or any argument as to why Judge Street was wrong to conclude that they had insufficient prospects of success to warrant the reinstatement of his application, it is unnecessary to consider the merits of his substantive application in any great detail. That issue may be dealt with briefly.
76 The first ground of the applicant's amended application in the Circuit Court was couched in language which suggested jurisdictional error. It asserted, in effect, that in finding that the applicant would not face a real chance of persecution in Lahore, the Authority addressed the wrong question or misdirected itself. It also appeared to be contended that the Authority's conclusion that the applicant would not face a real chance of persecution in Lahore was legally unreasonable. There were, however, no proper particulars as to what wrong question the Authority was said to have addressed, or how the Authority was said to have misdirected itself. And, when close consideration is given to the scant particulars that were provided in relation to the review ground, it is readily apparent that the appellant's argument in relation to this ground amounted to little more than a challenge to the factual findings and conclusion reached by the Authority in relation to his protection claims.
77 As discussed earlier, the Authority found that the applicant had a well-founded fear of persecution in his home town of Quetta on account of his Hazara ethnicity and Shia Muslim religion. The Authority found, however, that there were other parts of Pakistan, in particular Lahore, where the risk of the applicant being persecuted on that basis was significantly lower. The Authority's findings in that regard were based on country information it had before it in relation to Pakistan. The Authority also found that it was reasonable for the applicant to locate to one of those safer areas. In arriving at that finding, the Authority had regard to answers that the applicant had given to questions asked by officers of the Minister's Department when the applicant was interviewed about his visa application. Those questions and answers touched on the possibility of the applicant relocating to other parts of Pakistan. The end result was that the Authority found, in effect, that the applicant did not have a well-founded fear of persecution in those other parts of Pakistan.
78 The appellant's first ground of review appeared to contend that these findings by the Authority were unreasonable, or that in arriving at its conclusion the Authority in some unstated way asked itself the wrong question or otherwise misdirected itself. There is, however, nothing to suggest that the Authority's conclusion or the findings that led to it were in any sense illogical, irrational or not open on the material before the Authority. Nor is there any apparent basis for the assertion that the Authority somehow misdirected itself in arriving at its conclusion. A fair reading of the Authority's reasons suggests otherwise. The applicant did not advance any argument, let alone a reasonable or cogent one, which demonstrated that he had an arguable case.
79 The appellant's second ground of review would appear to be equally unmeritorious and to again have amounted to little more than an attempt at merits review. While the ground itself asserted that the Authority failed to observe "procedures required by the Act", it did not identify with precision the specific procedures that were said not to have been observed or the sections of the Act which were said to create those procedures. More significantly, when close consideration is given to the particulars of this ground, the applicant's argument appeared to hinge on the assertion that the Authority's finding that he did not have a well-founded fear of persecution in parts of Pakistan, including Lahore, was contradicted by information in "various" country reports. Those reports were not identified. In any event, the applicant's contention appeared to be that the Authority was required to provide reasons for accepting information in some country reports, but rejecting information in others which supported the contrary conclusion.
80 There is no apparent basis for either the contention that other country reports supported the contrary conclusion, or that the Authority was required to, but failed to, provide reasons for accepting some, but rejecting other, reports. The Authority's reasons, while fairly brief, nevertheless explained the basis of its findings in relatively clear, cogent and logical terms. References to the material which formed the basis of the key findings made by the Authority are provided in footnotes. The applicant did not take the Court to any material which was before the Authority which contradicted its findings. Nor is there any apparent legal or factual basis for the contention that the Authority was required to, but did not, provide reasons for rejecting any such contradictory material.
81 Ultimately, it was a matter for the Authority to make findings on the material that was before it, including the country information. It was a matter for the Authority to determine the information in the reports it accepted and the weight which was to be given to it. The Authority is not specifically required to refer in its reasons to information which it did not accept, or to which it did not give much weight, or give reasons for not accepting or giving any weight to any such information.
82 It follows that, as with the first ground of review, there is no apparent merit in the applicant's second ground of review. Judge Street was correct in so finding.
83 The absence of any apparent merit in either of the grounds of review in the applicant's substantive application is perhaps the most significant consideration which weighs against the grant of an extension of time and leave to appeal in this matter. Indeed, as already noted, in his written and oral submissions in support of this application, the applicant did not even attempt to demonstrate that his grounds of review had reasonable prospects of success.