AZF15 v Minister for Immigration and Border Protection

1. The Application for an extension of time is refused.
2. The proceeding is otherwise dismissed.
3. The Applicant is to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 The Applicant in the present proceeding is a citizen of Sri Lanka. 2 In December 2013 he applied to the Department of Immigration and Border Protection for a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the "Migration Act"). A delegate of the Minister refused that application a short time thereafter. 3 The Applicant then sought review by the former Refugee Review Tribunal (the "Tribunal") of the delegate's decision. He claimed to fear persecution if he was returned to Sri Lanka from both: the Sri Lankan Army because they had previously detained him in August 2011; and his Sinhalese supervisor at his former workplace because that person had threatened to harm him after a confrontation. He also feared harm by reason of: his having left Sri Lanka illegally and his return as a failed asylum seeker. The Tribunal in May 2015 affirmed the decision not to grant the Protection visa. In very summary form, the Tribunal: held "doubts about the applicant's credibility" which led it "to find that the applicant is not a witness of truth and [that] the account of events on which his protection claims are based is false" and further concluded that: "there is not a real chance the applicant will suffer serious harm (including for the essential and significant reason of a convention ground) if he returns to Sri Lanka" and that he "does not hold a well-founded fear of persecution based on any convention ground". 4 The Applicant then sought judicial review of the Tribunal's decision by the Federal Circuit Court of Australia. That Court dismissed the application on 29 October 2015: AZF15 v Minister for Immigration & Anor [2015] FCCA 2922. 5 On 24 November 2015 the Applicant then filed in this Court an Application for an extension of time within which to appeal from the 29 October 2015 decision. He appeared unrepresented before this Court on 25 February and 14 March 2016. He was accompanied by an interpreter on the second occasion. 6 An extension of time is sought because r 36.03 of the Federal Court Rules 2011 (Cth) (the "Federal Court Rules") prescribes that an appeal is to be filed within 21 days after the date on which the judgment appealed from is pronounced. Any appeal should have been filed by 19 November 2015. An extension of time, if granted, would thus be for a period of about one week. 7 Notwithstanding the prescription in r 36.03 for the time within which an appeal is to be filed, there remains a discretionary power to extend that time. In Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426 Tracey J said in respect to the discretion to extend time: [12] … The Court has an unfettered discretion to grant or refuse such an application. That discretion must, of course, be exercised judicially. This requires a balancing of potentially conflicting interests and regard to the peculiar circumstances of each case. The starting point in any given case is that the relevant legislation or rules have prescribed a period within which an appeal must be lodged. Such prescription serves the public purpose of bringing disputes to finality. There is, therefore, what has been described as a prima facie rule that applications or appeals brought out of time will not be entertained: cf Lucic v Nolan (1982) 45 ALR 411 at 416. It is, therefore, necessary for an applicant who seeks an extension of time to advance some plausible reasons which explain the delay in commencing the appeal and provide a foundation for the conclusion that it is in the interests of justice that an extension be granted: cf Duff v Freijah (1982) 62 FLR 280 at 285. One factor which may carry significant weight in determining where the justice of a case lies is the merits of any proposed appeal: cf Lucic at 417. Where an extension of time is sought in order to lodge a notice of appeal, it is to be borne in mind that "the respondent to the application has a vested right to retain the judgment, the subject of the appeal": see Jackamarra v Krakourer (1998) 195 CLR 516 at 519-20 (Brennan CJ and McHugh J). In assessing the merits of a potential appeal the Court is not required to examine a case in great detail. A "full rehearsal" of the argument on appeal is not required. Any assessment of "the merits" must necessarily be undertaken "in a fairly rough and ready way": see Jackamarra at 522. See also: Jess v Scott (1986) 12 FCR 187 at 191-2 and the authorities therein referred to. Even where the period of time for which the extension is sought may be short and even where a respondent suffers no prejudice, an extension may be refused: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [37] to [39], (2001) 117 FCR 424 at 439 to 440 per Allsop J (as his Honour then was, with whom Drummond and Mansfield JJ agreed); SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 at [36] per Rares, Flick and Griffiths JJ. An extension of time may also be granted but the appeal itself may be dismissed: e.g., AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193. 8 Although the extension of time required in the present case is for a limited period and the Respondent Minister quite properly does not claim any prejudice occasioned by the delay, the extension is to be refused. 9 Some explanation, albeit a less than satisfactory explanation, has been provided for the delay - the affidavit provided in support of the application merely states that the Applicant "did not have enough funds". But no assertion is made that the Applicant was not aware that the period within which he was to file an appeal was 21 days. Bearing in mind, however, that the affidavit is in rudimentary form and that the Applicant is unrepresented, such a deficiency may assume little relevance. 10 More importantly, the Draft Notice of Appeal sets forth the sole proposed Ground of Appeal as follows: Primary Judge erred in applying the well-founded fear test. But no further assistance is there provided as to the error sought to be relied upon. Nor is any such error apparent in the reasons for decision of the primary Judge. 11 Before the Federal Circuit Court, there was - apparently - an amended application which identified the grounds of review upon which the application before that Court proceeded. Those amended grounds, in very summary form, alleged: a failure to consider "a claim squarely raised" - the "particulars" to that claim being a reference to two claims to fear harm by reason of the Applicant being a failed asylum seeker and his being a "non-voluntary returnee"; and that the Tribunal erred in "failing to consider [the Applicant's] claim". No challenge seems to have been expressly made before the primary Judge as to the Tribunal's rejection of the Applicant's claims to fear persecution by reason of his alleged involvement with the Sri Lankan army or his supervisor. But, perhaps, so much was intended to be embraced within the claim that the Tribunal had failed to consider the claim being made. 12 The grounds of review as amended were nevertheless addressed by the Federal Circuit Court Judge. His Honour rejected each of the grounds and ultimately concluded that "it is clear that the Tribunal properly considered the claims raised by the applicant and that this is not a case where there has been a failure to consider an integer of the applicant's claims of fear of persecution or fear of significant harm": [2015] FCCA 2922 at [14]. 13 Before the primary Judge there does not appear to have been any contention that the Tribunal failed properly to apply "the well-founded fear test". Nor does there appear to be any self-evident error on the part of the primary Judge in resolving the grounds of review which were advanced before him. 14 However expressed, any challenge to the decision of the Tribunal seemed doomed to failure by reason of: the rejection by the Tribunal of the factual basis upon which the claims were advanced, the Tribunal thus rejecting (for example) one submission to the effect that "there is no credible evidence that any of these matters affected the applicant in his life in Sri Lanka"; the fact that reports from DFAT did not disclose that being a Tamil from a certain part of Sri Lanka per se would lead to a real risk of serious harm; and the finding that the prospect of the Applicant being held in remand upon his arrival back in Sri Lanka "does not amount to serious harm for the essential and significant reason of a Convention ground" and that the risk of "suffering serious harm … is remote…". The overall conclusion of the Tribunal was that : considered "cumulatively" the Tribunal held concerns "about the applicant's credibility" and lead it to conclude that he was "not a witness of truth and the accounts of events on which his protection claims are based is false." There is no self-evident error in the findings provided by the Tribunal for these conclusions. The Applicant lost before the Tribunal, not upon the basis of any legal conclusion expressed by the Tribunal, but upon the basis of the adverse factual findings that had been made. 15 Nor is there any self-evident appellable error in the reasons of the Federal Circuit Court Judge in the resolution of the grounds of review there advanced for consideration. Considered free of the manner in which the grounds of review were there expressed by the Applicant, no legal error in the manner in which the Tribunal proceeded was otherwise apparent. 16 The concern of the Applicant before this Court, unconfined to the terms in which the Draft Notice of Appeal had been drafted, was expressed more in terms of disagreement with the factual conclusions reached by the Tribunal, including the Tribunal's adverse assessment of his credibility. So much, with respect, may be expected from an unrepresented applicant. However genuine may be the Applicant's expressed dissatisfaction with the Tribunal's factual conclusions, those findings of fact are generally within the exclusive purview of the Tribunal. A challenge to factual conclusions cannot transform that which is within the exclusive jurisdiction of the Tribunal into viable grounds of judicial review. 17 The extension of time is refused. There is little point in allowing an extension of time in order that the Applicant may pursue an appeal which has no realistic prospects of success.