BOO17 v Minister for Home Affairs

1. The applicant's draft notice of appeal be deemed to be a notice of appeal filed on 12 February 2018.
2. Time to file the notice of appeal be extended accordingly.
3. The requirement that the applicant serve the notice of appeal on the first and second respondents be waived.
4. The appeal be dismissed.
5. The applicant pay the first respondent's costs, of and incidental to the appeal and the application for an extension of time, together with reserved costs, if any, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 The applicant is a citizen of Bangladesh. He came to Australia by boat from Malaysia, via Indonesia, arriving on 21 February 2013. The circumstances of his arrival then were such that he was what the Migration Act 1958 (Cth) (Act) terms "an unauthorised maritime arrival". Some years later, the applicant was invited to, and applied on 21 May 2016 for, a Subclass XE-790 Safe Haven Enterprise Visa (visa). On 22 December 2016, a delegate of the Minister of State responsible for the administration of the Act, now the respondent Minister for Home Affairs (Minister), decided to refuse the applicant's visa application. 2 As it had to be, that decision was then referred for assessment by the Immigration Assessment Authority (Authority). On 8 March 2017, for reasons given that day, the Authority decided to affirm the decision of the Minister's delegate not to grant the applicant the visa for which he had applied. The applicant then sought a judicial review of that decision by the Federal Circuit Court. On 16 January 2018, for reasons for judgment delivered ex tempore, that court ordered that the judicial review application be dismissed with costs fixed in the sum of $7,206. The applicant was disposed to challenge that order of dismissal, but did not lodge in this Court's registry any initiating process by the expiry of the appeal period, i.e. by 6 February 2018. On 12 February 2018, he filed an application for an extension of time within which to appeal. In August that year, I ordered that argument in respect of the application be treated as if it were argument on the appeal. That course was duly adopted at the hearing. 3 It may be accepted, as the Minister submitted, that there is a public interest in finality in relation to the disposal of visa claims under the Act in relation to this particular class of visa. However, the contingency that the claims made by a particular applicant and the apprehended fear of persecution may just be well founded does sound a cautionary note in terms of attributing great, much less, decisive weight to finality in circumstances where, as here, the delay is very short. Further, the delay is not unexplained. It appears, and this is not challenged, that the applicant was misled as to the applicable appeal time by a person described as his "case officer". Inferentially, it may also be the case that there was a misunderstanding on the part of the applicant and perhaps, also, the "case officer" as to the position with orders pronounced and reasons for judgment delivered orally. It is understandable, but erroneous, not to regard those as taking effect when pronounced orally for the purposes, materially, of time running for the institution of an appeal. 4 Also material in relation to whether or not to grant an extension are the merits of a prospective appeal. That is not to say that an applicant for an extension of time is obliged to prove to demonstration that proposed grounds of appeal must succeed, only that they are reasonably arguable. In other words, the grounds must be attended with sufficient prospect of success to warrant the granting of an extension. 5 Assessment of that last consideration is, in the present case, complicated and, with all due respect, unnecessarily complicated, by a submission on behalf of the Minister that the proposed grounds of appeal raise issues which were not at large in the Federal Circuit Court on the judicial review application. Of course, it is the case that this Court is exercising appellate, not original, jurisdiction. It is a serious misconception to think that the Court is concerned with anything other than whether the order made by the court in the original jurisdiction is attended with appellate error. Far and away usually, that error must be one which was, in terms of assertion, put before the Court exercising original jurisdiction. But if it can be seen that the decision under challenge in the original jurisdiction was attended with jurisdictional error, such that an order of dismissal of a judicial review application was never just, the interests of justice may demand, exceptionally, that leave to raise a point not taken below be granted. 6 I have used the qualification "unnecessarily" in relation to the submission about proposed grounds of appeal and their relationship with the issues at large before the Circuit Court because, in my view, whilst they are much better pleaded in the draft amended notice of appeal, the issues as revealed by those grounds are not materially different from those which were at large in the Federal Circuit Court, having regard to the grounds of review in the judicial review application, as that application came finally to be amended. In its final form in the amended application filed 21 November 2017, the grounds of review were as follows: 1. The decision maker engaged in jurisdictional error in making a decision that was unreasonable: a. By placing too much emphasis on the arrival interview in particular taking into account the problems with interpretation at the SHEV interview (CV68) b. In rejecting the involvement of the Applicant in the BNP, including participating in the protest, and his degree of risk due to his membership, high level or otherwise of the party 7 Assessment of the issues before the Federal Circuit Court must, additionally, be measured by reference to the outlines of submissions. I do not propose to detail those. 8 In the draft amended notice of appeal, the proposed grounds of appeal are as follows: 1. The learned trial judge erred in finding, to the extent that His Honour did, that the decision of the IAA was not unreasonable or illogical in circumstances where the IAA accepted: a. The Appellant is a national of Bangladesh; b. The Appellant was able to provide information on the BNP's objectives and aims consistent with the country information regarding the BNP's constitution; c. The Appellant was a member of the BNP; d. The Appellant's father was a member of the BNP; e. The Appellant was verbally threatened walking home from a meeting he attended as a member of the BNP; f. The Applicant was verbally harassed by members of the Awami League in the past on his way home from party meetings; g. The Applicant will, on his return to Bangladesh, continue his support for the BNP as an ordinary member; h. The security forces in Bangladesh use excessive force against protestors; i. Under the current Awami League government, BNP leaders are subjected to a high level of official discrimination during periods of heightened political tension; j. BNP members are subjected to a low level of inter-party violence which has increased since 2013; k. BNP supporters or members in rural areas are subjected to low level violence associated with extortion. l. While rejecting that the Appellant took part in a demonstration in the way he claimed (front row and injured and taken to hospital), the IAA does not seem to make an adverse finding concerning the Appellant's taking part in the demonstration. As with other elements of the Appellant's claims, the IAA seems to be rejecting what it sees as embellished aspects but seems to be accepting a more mundane version. Alternatively, the IAA has failed to make a finding on an important factual element of the Appellant's claims to be a refugee. but concluded that there was not a real chance that the applicant would suffer serious harm. 2. The learned trial judge erred in finding, to the extent that he did, that the decision of the IAA was not unreasonable or illogical in circumstances where it was based upon arbitrary and illogical matters, including the applicant's ability to recognise or describe a flag and the applicant's ability to identify what the acronym BNP stands for; 3. The learned trial judge erred in failing to engage with the case advanced by the applicant; and 4. The learned trial judge erred in failing to provide adequate reasons for the conclusion his Honour reached. [Footnotes omitted] 9 Obviously enough, for present purposes, attention must focus on grounds 1 and 2. In my view, those grounds do nothing more and nothing less than state in a more elaborate way the basis of challenge, which was contained in the amended application and by elaboration in written submissions, at large before the Federal Circuit Court. One should not seek to be overly critical of disparities. It is plain enough that issues as to reasonableness and illogically or irrationality were at large before the Federal Circuit Court. 10 Further, having considered the written submissions and with the benefit of the careful, concise and candid oral submissions made today on behalf of both the applicant and the respondent, I am persuaded that the case is one where the grounds are at least sufficiently arguable to warrant the granting of an extension. So all of the conditions for the granting of an extension of time are met. That being so, I propose to deem the draft notice of appeal, which became Exhibit 2, to be a notice of appeal filed on 12 February 2018, to extend time accordingly and to deal with the case as a substantive appeal, without the need for the applicant to serve that notice of appeal and appear again on its hearing. 11 In dealing with the appeal, it is convenient, first, to deal with grounds 1 and 2. That is because, whatever inadequacies there were in relation to the hearing and determination, including reasons for judgment of the Federal Circuit Court, if neither of grounds 1 and 2 were made out, there would be no point in allowing the appeal.