BHC16 v Minister for Immigration and Border Protection

Introduction 1 This is an application for an extension of time to appeal pursuant to r 36.05 under the Federal Court Rules 2011 (Cth) (FCR) from the orders and judgment of the Federal Circuit Court (FCC) in BHC16 v Minister for Immigration and Border Protection [2018] FCCA 1590. 2 The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal, dated 9 May 2016, affirming a decision of a delegate of the Minister to refuse the applicant the grant of a protection visa. This application is brought 32 days late. 3 It is well-settled that the factors to be taken into account when considering whether an extension of time should be granted include the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344 at 348-349, affirmed by the Full Court in Parker v R [2002] FCAFC 133 at [6]. 4 Insofar as the merits of the proposed appeal are concerned, the court considers what has been described as "the outline of the case" without "going into much detail on the merits": Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J and at 540 [66] per Kirby J adopting Lord Denning MR's approach in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F. 5 See also MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 per Mortimer J at 599 [66] where her Honour stated that "unless the grounds are hopeless … so that simply on an impressionistic reading and consideration without full argument a judge can be confident they must fail, the better approach if the Court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time would be to do so and then to consider and determine the grounds of review with a full consideration of them" (my emphasis). That approach was endorsed by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478 at [21]-[23] and [38] per Tracey, Perry and Charlesworth JJ. 6 As is customary in an application for an extension of time, the record produced before me was very limited. In this case it comprised only the decision record of the Tribunal and the reasons for judgment of the FCC. Relevantly, it did not include the decision record of the delegate or, importantly, any record of the applicant's interviews by the delegate and the Tribunal. My consideration of the prospects of success on appeal are therefore in any event necessarily impressionistic.

Background 7 The applicant is a male citizen of Nepal. He applied for a protection visa in February 2014. The basis for that application was a claimed fear of harm because he is homosexual and in a homosexual relationship. He claimed that his family and society in Nepal regard homosexuality as unacceptable and that he was subjected to physical and emotional abuse by his family. He says that he will face persecution and significant harm for these reasons upon any return to Nepal. 8 The applicant also claimed that he suffered political persecution at the hands of the Maoists on account of him being a Royalist. 9 Those circumstances, and the need to study at a high school in a nearby town, led the applicant and his male partner to leave their village. After allegedly facing continuing instances of discrimination as a result of his sexual orientation, the applicant left Nepal in August 2010 using a false Nepalese passport in the name of an Australian student visa holder, and arrived in Australia on the same day. 10 The applicant's protection visa application was refused by a delegate of the Minister in September 2014. From the Tribunal's reasons, it appears that the delegate was prepared to accept that the applicant is homosexual as claimed by him, and that he is currently in a homosexual relationship with a roommate in Sydney. However, on the basis of country information the delegate considered that although Nepali society remains largely traditional in its mores and attitudes, the decriminalisation of homosexuality has been a key step towards respecting and protecting the human rights of homosexuals. The delegate concluded that although some discrimination may be directed towards homosexuals, the delegate did not find that any such discrimination would amount to persecution or significant harm. 11 In May 2016, the Tribunal affirmed the delegate's decision, but in stark contrast to the findings of the delegate it rejected the applicant's evidence that he is homosexual. The Tribunal had "a number of concerns about the applicant's changing inconsistent and not credible evidence" and did not find him to be a "credible, truthful or reliable witness" in relation to his central claims. It identified numerous problems with his evidence. 12 On the basis of its adverse credibility findings, the Tribunal found that the applicant's claims were "fabricated" for the purposes of his protection visa application. It did not accept that he was homosexual, rejected all his associated claims and found he did not face a real chance of harm for any of the reasons that he claimed. Further, it found that his related activities in Australia were undertaken for the sole purpose of strengthening his claim for protection, and accordingly disregarded that conduct. 13 The applicant's first ground of appeal in the FCC was that the Tribunal erred by not putting a country report to the applicant for him to comment on it, notwithstanding that the Tribunal relied upon it to reach its decision. The primary judge rejected that ground on the basis that s 424A(3)(a) of the Migration Act 1958 (Cth) rendered any obligation under s 424A(1) inapplicable as long as the information was not specifically about the applicant or another person. The primary judge also found that the only express reference to any country information in the Tribunal's decision was with reference to a DFAT report that had been sent to the applicant's representatives prior to a second hearing that the applicant had before the Tribunal. 14 In the circumstances, the primary judge found that ground 1 failed to establish that the decision of the Tribunal was affected by jurisdictional error. 15 The applicant's second ground before the FCC was that the Tribunal failed to investigate and take into account evidence of the relationship with his partner in Australia. The primary judge found that the Tribunal decision was not concerned with the applicant's relationship with his partner in Australia, but rather his relationship with his previous partner in Nepal. The primary judge also found that the Tribunal clearly considered and took into account evidence of the claimed relationship between the applicant and his partner in Australia, and on that basis also rejected ground 2.

Extent 16 The extent of the delay in this case is not trivial but it is also not particularly significant. As I have said, it is 32 days. It is true that the period of 21 days for the filing of an appeal from a judgment of the FCC has more recently been extended to 28 days, which perhaps changes the way in which one sees the delay of 32 days: AWU16 v Minister for Immigration and Border Protection [2019] FCA 1241 at [21] per Mortimer J. 17 That said, at the relevant time the applicable period was 21 days, and the fact that the period was subsequently changed does not alter the extent of the operative delay at the relevant time in the present case. In any event, even if one allowed for the seven days in question there would still be a delay of 25 days, which is a significant delay. That weighs against the grant of the extension of time.

Explanation 18 Next, with regard to the reasons for the delay, the applicant's explanation on affidavit was brief: I did not file a notice of appeal within the deadline due to my financial hardship. I learned the fact that I could apply for a fee waiver based on my financial hardship by the time when the deadline for filing a notice of appeal was already expired. 19 The applicant appeared before me unrepresented. I asked him further details about the reasons for the delay. Ms Wong, who appeared for the Minister, also tendered two items of correspondence. I consider that the documents and the applicant's explanation, which was given from the Bar table with the assistance of an interpreter, reasonably establish the following. 20 The hearing in the FCC took place on 26 July 2017 and judgment was then reserved. Judgment was ultimately delivered on 22 June 2018. Although the applicant had given the FCC an email address at which he could be contacted, in the 11 months between the hearing and delivery of judgment the applicant lost his ability to access that email address on account of having forgotten his password. From the address one can see that it is a web-based email address that would ordinarily require password access. 21 The applicant then established a new email address, which is the address that he has given in the proceeding in this Court, but he failed to notify the FCC of his new email address or that the previous address was no longer accessible to him. 22 It was doubtless for that reason that the applicant did not receive notification by email from the primary judge's associate on 18 June 2018 that judgment would be delivered on 22 June 2018. The applicant did not know that judgment would be delivered on that day, and Ms Wong confirmed that the applicant did not attend court when judgment was delivered. 23 The Minister's solicitors sent a letter to the applicant dated 25 June 2018 which enclosed the sealed orders made by the primary judge as well as his reasons for judgment. The applicant confirms that it was on receipt of that letter that he first learnt of the outcome of the proceeding in the FCC. 24 It is not clear when the applicant received the letter dated 25 June 2018. He initially stated that it was "some months" after the judgment, but when I pointed out that that was unlikely since he had commenced the appeal proceeding in this Court within two months of the FCC judgment, he said that it was "a month or so". 25 The applicant explained that he was somewhat immobilised by the adverse result in the FCC and initially did nothing to investigate how to challenge it. However, when his partner explained to him that it was pointless being depressed about the result and that he had better fight it otherwise he would be removed from Australia, he then made arrangements to try and raise sufficient funds to commence the proceeding in this Court. 26 In written submissions on behalf of the Minister, it was submitted that a lack of financial resources and knowledge of legal processes are common challenges faced by unrepresented litigants in the migration caseload and do not, either individually or in combination, establish a satisfactory explanation for the delay. It was also submitted that financial constraints alone do not constitute an acceptable explanation for the delay. Reference was made to SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]-[26]; BRGAO v Minister for Immigration and Citizenship [2009] FCA 126 at [16]-[17]; and QAAH v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2004] FCAFC 9 at [7]. 27 While I accept that financial constraints do not on their own constitute an acceptable explanation for delay, and that it was the applicant's responsibility to notify the FCC of his changed email address, the combination of his learning about the FCC judgment at least a week or two, and possibly longer, after it was handed down, his understandable debilitating emotional response to the judgment, his lack of financial resources, legal representation and legal knowledge and understanding, and the generally difficult circumstances in which he found himself, do to some extent explain at least part of the delay.

Prejudice 28 Ms Wong for the Minister properly accepted that the Minister faced no relevant prejudice as a consequence of the delay.

Conclusion on delay 29 In the circumstances, the length of the delay and the absence of a full and comprehensive explanation of the whole of the period weigh against the applicant, but I do not consider that they weigh particularly heavily against him. Ultimately, the interests of justice in this case must be determined principally with reference to the possible merits of the proposed appeal.

The merits of the proposed appeal 30 The applicant's proposed grounds of appeal are as follows. 31 First, it is said that the FCC erred by failing to find that the Tribunal failed to accord the applicant procedural fairness because it did not disclose to the applicant the existence of a certificate and notification regarding the disclosure of certain information made to it by the Minister's Department in the course of the review by the Tribunal, and that this constituted jurisdictional error. 32 Secondly, it is said that the Tribunal "based the finding of lack of credibility on a clearly erroneous fact".

First ground: s 438 certificate 33 On 18 September 2014, an officer of the Department issued a s 438 certificate which was stated to cover identified documents. If the Minister has certified, in writing, under s 438(1) that the disclosure of any matter contained in an identified document, or the disclosure of identified information, would be, relevantly, contrary to the public interest and the Secretary of the Department notifies the Tribunal thereof, the Tribunal may have regard to any matter contained in the document or the information and may, if the Tribunal thinks it appropriate to do so, disclose any matter contained in the document, or the information, to the visa applicant. 34 The effect of such a certificate is authoritatively set out in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599, in particular at [15]-[26] per Bell, Gageler and Keane JJ. 35 In this case, the Minster accepted that the certificate was invalid, but notification of it was nevertheless given to the Tribunal. The Secretary's provision of an incorrect, and therefore invalid, notification that s 438 applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review: SZMTA [44]. This constitutes jurisdictional error if it deprived the applicant of the possibility of a successful outcome, i.e. if it could realistically have resulted in a different decision if the Tribunal had taken the document or information into account: SZMTA at [3] and [48]. 36 The Tribunal also did not disclose to the applicant the notification to it of the invalid certificate, or the documents the subject of the invalid certificate. That constituted a breach of the Tribunal's obligation of procedural fairness, but this constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. This breach is material if it could realistically have resulted in a different decision had the applicant had the opportunity to make submissions to the Tribunal, which would have been possible had the applicant been properly notified. See SZMTA at [49] per Bell, Gageler and Keane JJ. 37 The question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof: SZMTA at [46] per Bell, Gageler and Keane JJ. 38 Ground 1 of the proposed appeal therefore squarely raises the question of materiality, which is to say whether, had the applicant been made aware of the s 438 certificate before the Tribunal made its decision, that could realistically have made a difference to the outcome before the Tribunal. That necessarily invites consideration of the documents in question and the reasoning process of the Tribunal. The ground of appeal might also be taken to cover the question whether the fact of the certificate being invalid led to jurisdictional error, which also invites consideration of the documents in question in order to determine the materiality of the breach. 39 In view of my conclusion with regard to the second ground of appeal and the course that the appeal should take, I do not propose to say more about the first ground of appeal at this stage.

Second ground: "finding of lack of credibility based on clearly erroneous fact" 40 I did my best to elicit from the applicant some particularity with regard to ground 2. He was, however, unable to assist other than to say that justice requires that the Tribunal reconsider its decision. I took the ground to be something of a reiteration of ground 2 before the primary judge and an attack on the Tribunal's reasoning process which led to it rejecting his claims on the basis that he lacked credibility. 41 The Tribunal's reasons demonstrate that it considered the applicant's claims and evidence in considerable detail and provided reasons for its conclusion that the applicant was not a credible witness. I have closely scrutinised those reasons, in particular because the applicant is unrepresented before me. 42 There are a number of troubling aspects of the Tribunal's reasoning which could, at an impressionistic level at this stage, give rise to a successful appeal. Just by way of example, they include the following. 43 The Tribunal appears to have held it against the applicant that he failed to provide explicit photographs of him and his partner engaging in homosexual sex to prove that he is homosexual. Although the applicant volunteered to furnish such photographs, that was in response to the Tribunal advising him that he was disbelieved with regard to his sexuality. In response the Tribunal apparently advised the applicant that he was invited to provide any further evidence on which he wished to rely, i.e. it in effect accepted the offer to furnish sexually explicit photographs. It also found his subsequent explanation that he did not produce those paragraphs because he was uncomfortable to do so to be unpersuasive. Relevant paragraphs of the Tribunal's reasons include [3], [17] and [60]. Once the applicant did produce various photographs, including sexually explicit photographs albeit not indisputably of the applicant and his partner, the Tribunal rejected these as having been staged. 44 The Tribunal appears to have held it against the applicant that he was not able to satisfactorily explain why he and his male partner did not intend to marry each other in Australia. The Tribunal questioned the applicant about his intentions with his partner. It found that what it characterised as his evasive and changing evidence on this issue to undermine his claim to be in a homosexual relationship. Relevant paragraphs of the Tribunal's reasons include [48]-[51] and [67]. 45 Having rejected the applicant's evidence, the Tribunal then rejected corroborative evidence put forward by the applicant on the basis that it was "not prepared to accept" much of that evidence, apparently on the basis that it was inconsistent with the conclusion that it had reached with regard to the applicant's evidence. For example, it rejected the evidence of the applicant's partner who claims to be in a homosexual relationship with the applicant in Australia. The Tribunal also rejected evidence by way of statutory declaration provided by four further witnesses, namely two friends and flatmates of the applicant and a friend and a brother of one of those friends. 46 It is not necessary or appropriate for me to go into further detail to avoid the risk of being seen to possibly pre-empt the appeal. It seems to me that there may be grounds of review of the Tribunal's decision available to the applicant which go to the Tribunal's reasoning process, how it treated the evidence and the manner in which it exercised its jurisdiction. I have in mind, for example, cases such as DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 353 ALR 641 where the circumstances were similar and it was found that there was jurisdictional error on account of there being no logical, rational or probative basis for rejecting the evidence of independent witnesses, which demonstrated extreme illogicality and the lack of an intelligible foundation. 47 I appreciate that any such ground of review may strictly go beyond what the applicant asserted before the primary judge, but that would not shut the door on him asserting such a ground on appeal. He would, of course, require leave to do so. A significant consideration in deciding whether or not he should have such leave will be that he has been unrepresented at the relevant times. Another will be the very significant human consequences of the decision under review: see Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3]. In the circumstances I cannot have any confidence that he would not get such leave. 48 I emphasise that I have formed no view on the above possible criticisms of the Tribunal's reasons other than that I cannot, at an impressionistic level, be confident that they would necessarily fail as grounds of review. I am also mindful that the applicant was unrepresented before the FCC and he is unrepresented before me. As far as I can tell from the record, he does not have any tertiary education and certainly does not have any training in law. In the circumstances, his ability to present his case to the FCC and to this Court was substantially hamstrung. The Court's obligation to him to ensure the fairness of the proceeding in this Court weighs heavily in my consideration of what the interests of the administration of justice require in this case.

Disposition 49 Because of the troubling aspects of the Tribunal's reasons that I have mentioned that may be fertile ground for a successful appeal, I am satisfied that the interests of the administration of justice require that the applicant be granted the extension of time that he has sought; failure to do so may result in a grave injustice in this case. 50 Moreover, in light of his apparent financial constraints, and the possible merit of his appeal as well as its complexity, I am resolved to issue a referral certificate to the applicant under r 4.12(1) of the FCR. That will enable the appointment of a pro bono lawyer to represent the applicant should he wish that. I will also grant the applicant leave to file an amended notice of appeal to better reflect any appeal grounds that any lawyer representing him might identify. 51 As I did not receive submissions on the costs of this application, I will reserve those costs to be decided in the appeal. My provisional view is that they should merely be costs in the appeal, but that will now be a matter for the Court hearing the appeal. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stewart.