BVG16 v Minister for Immigration and Border Protection

1.2 The present application 7 The order made by the FCCA is interlocutory, and so it is necessary for the applicant to apply for leave to appeal from it pursuant to s 24(1A) of the FCA Act within 14 days after the judgment was given; r 35.13(a) Federal Court Rules 2011 (Cth) (FCR). The applicant did not do so. Instead, he filed an application for an extension of time and leave to appeal on 20 February 2018 (leave application), some 3 months and 6 days beyond the time prescribed by the FCR. 8 The applicant filed an affidavit in support of his leave application. In it he states that he believes that the decision of the FCCA was affected by jurisdictional error for the reasons set out in his draft Notice of Appeal. He explains his delay in filing the leave application as follows: 3. I am seeking an extension of time to seek leave to appeal to this Honourable Court. After the decision was made, I wanted to lodge an appeal, but I was told that I should write to the Minister and ask him to exercise his discretion under section 417. I then made such an application and in February 2018 I received notification that the Minister would not exercise his discretion in my favour. That is when I decided that I should have followed my original plan and appealed to the Federal Court…. 4. I am a layperson with no knowledge of the law and its procedure. I now make this application in mid February 2018, as I had no knowledge that I had to make an appeal within 21 days of the date of decision. 5. I have filled out all relevant forms and then lodged this appeal, as soon as possible. I say that there is no prejudice that will be caused to either the First or Second Respondent and I do believe that I have a case to argue. 6. I also want to be given the opportunity of appearing in court and providing the Court with oral submissions. 9 The draft Notice of Appeal contains one ground, namely, that the decision of the FCCA is affected by jurisdictional error. The particulars provided are as follows: The Federal Circuit Court erred in its conclusion that there was very little prospect of the applicant succeeding on any basis in relation to this substantive application, especially in relation to him being held on remand in a Sri Lankan jail. In considering whether there is a real risk of the applicant experiencing treatment involving "significant harm" for the purposes of s 36(2)(aa), the Second Respondent has taken into consideration that the applicant may be detained in a Sri Lankan prison. However, it then should have considered if it could be satisfied that any pain or suffering caused by severe overcrowding and poor and unsanitary conditions, should the applicant be remanded in custody, would be intentionally inflicted on the applicant, as required by the definition of cruel or inhuman treatment or punishment. In other words it should have evaluated the nature and gravity of that loss of liberty and the Court should have addressed that issue. 10 The leave application concerns the following order made by the FCCA on 31 October 2017 (FCCA order): The application in a case filed on 16 August 2017, in which the applicant sought the reinstatement of an application for an extension of time, be dismissed. 11 The grounds of review of the decision of the Tribunal that the applicant proposed to advance before the FCCA were somewhat different to those identified in his present draft notice of appeal. As set out in the FCCA decision, the grounds articulated are: 1. The decision of the Tribunal: a. is affected by an error of law; and b. denied the applicant procedural fairness. 12 The fate of the present application depends broadly on two questions: first, whether or not the court grants leave for the leave application to be brought 3 months and 6 days out of time. Secondly, whether the application for leave to appeal should be granted. It is to be noted that the FCCA order had the effect of refusing the applicant leave to apply for an extension of time of 13 days within which to file an application for judicial review of the decision of the Tribunal. 13 The applicant represented himself at the hearing. He filed no written submissions. The Minister was represented by Christopher McDermott of counsel, who filed written submissions in advance of the hearing.

THE RELEVANT LAW 14 Section 24(1)(d) of the FCA Act provides that this Court has jurisdiction to hear appeals from judgments of the FCCA. 15 There can be no doubt that the decision of the primary judge not to set aside the dismissal order was an interlocutory decision: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [1] (Ryan J); BTR15 v Minister for Immigration and Border Protection [2016] FCA 892 at [17] (Edelman J). Section 24(1A) of the FCA Act requires that for an appeal to be brought from an interlocutory decision, the applicant must be granted leave to appeal. 16 An application for leave to appeal must be filed within 14 days of the date of the orders made; r 35.13 FCR. The present application in this court was filed some 3 months and 6 days after that date. Accordingly, the applicant must obtain the leave of the court for an extension of time within which to seek leave to appeal and for leave to appeal. 17 In considering whether an extension of time should be granted, the Court usually has regard to 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. These factors are considered together and assist in arriving at a conclusion as to whether it is in the interests of justice for the extension of time to be granted. It is seldom in the interests of justice for an extension to be granted where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the court, and the impact on other litigants who are waiting to have their cases heard. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is "sufficiently arguable" or has "reasonable prospects of success"; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 (MZABP) at [62]-[63] (per Mortimer J); Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27]. 18 In considering the question of the grant of leave to appeal, I must take into account the statements of principle in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at [2], to the effect that this Court will generally grant leave to appeal where the applicant shows that there is sufficient doubt as to the correctness of the judgment subject to the proposed appeal to warrant review and, further, if that judgment is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. The position in relation to the assessment of the strength of the case in the proposed appeal is analogous to that identified in MZABP. 19 In the present case, the primary judge exercised discretion pursuant to r 16.05(2)(a) FCCR, which provides that the Court may vary or set aside a judgment or order after it has been entered if it was made in the absence of a party. The order that the FCCA declined to set aside was one that dismissed the applicant's application for an extension of time within which to file an application for review of the decision of the Tribunal. In that decision, the Tribunal had affirmed the decision of the delegate. 20 It is to be noted at the outset that the consequence of an order made pursuant to FCCR 13.03C(1)(c) is significant. Upon the failure of an applicant to appear at the hearing of the action, his or her case for review of the decision of the Tribunal is dismissed, no doubt with costs. However, FCCR r 16.05(2)(a) reposes in the FCCA a discretion to set aside such an order in the terms that I have described. 21 The standard of appellate review applicable to the exercise of a judicial discretion is set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 (House v The King) at 504-505. It is not enough that the judge composing the appellate court considers that, if he or she had been in the position of the primary judge, he or she would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary judge acts upon a wrong principle, if she allows extraneous or irrelevant matters to guide or affect her, if she mistakes the facts, if she does not take into account some material consideration, then her determination should be reviewed and the appellate court may exercise its own discretion in substitution for hers if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in her order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

THE DECISION OF THE PRIMARY JUDGE 22 The primary judge's reasons address two matters. The first is the reinstatement application. The second is the extension of time application. The primary judge commenced by identifying factors that she must take into account for each. For the former, she observed that the relevant considerations were: the length of delay between the dismissal and the filing of the application for reinstatement, the reasons for non-appearance and for the delay in filing the application for reinstatement, any prejudice to any party and the prospects of success of the application sought to be reinstated. In relation to the latter (that is, the application for an extension of time in which to file the application for review of the Tribunal's decision), she identified the relevant considerations to be the length of delay involved, whether the explanation for the delay is adequate, the prejudice to either party if the extension of time is granted, the public interest in the finality of decisions and the prospects of success of the substantive application. 23 In relation to the reasons for non-appearance in court for the hearing of the reinstatement application, the primary judge accepted that the court notice of the listing date for the hearing was inappropriately addressed to "the applicant" rather than by reference to the name of the applicant. The primary judge accepted the evidence of the applicant that he had moved house before the notice of listing was sent with the consequence that the primary judge found that it is "possible" that the applicant had moved out of his nominated address prior to the notice of listing being sent. The applicant gave evidence that he did not notify the court of his change of address because his friends still lived there and he would go there on weekends to check for letters. The primary judge considered that the applicant bore some responsibility for not receiving the notice of listing, because he did not provide the court with an email address and because he did not update his residential address with the court. Nevertheless, she considered that the court contributed to the applicant's non-attendance on 21 July 2017 by addressing the notice of listing to "the applicant" rather than by reference to the applicant's name, and concluded that the applicant had provided an adequate explanation for not attending court on 21 July 2017 when the extension refusal order was made. 24 The court then noted that the Minister did not point to any prejudice to him if the extension refusal order was reversed. On the other hand, the primary judge accepted that there would be significant prejudice to the applicant if the extension refusal order were not reversed. 25 The primary judge then turned to the application for an extension of time within which to file the reinstatement application. The primary judge observed that the applicant had been 13 days late in lodging his application for reinstatement with the court. She noted that the applicant had explained this delay by reference to the fact that he had no lawyer at the time, and that it was not until he obtained an appointment with the Asylum Seeker Resource Centre on 18 July 2016 that he was able to get assistance. The application for reinstatement was filed on the same day. The primary judge made no finding as to whether or not this explanation was adequate. The primary judge then noted that in relation to this application the Minister did not claim that he would suffer any prejudice if the extension were granted and noted that the applicant would suffer substantial prejudice if it were not. 26 Finally, the primary judge turned to consider the prospects of success of the applicant in his substantive application for judicial review of the decision of the Tribunal. Plainly enough, the prospects of success of that application were relevant to both of the applications being considered by the primary judge. 27 After identifying the claims made by the applicant that the delegate had rejected, the primary judge summarised the Tribunal's decision as follows: 27 The Tribunal noted that the applicant no longer claimed to fear harm from the loan shark who had lent money to the applicant's father. The Tribunal considered that the applicant did not face a real risk of harm from the loan shark. 28 The Tribunal considered that the applicant's father being held on remand did not impact on the applicant in any way. The Tribunal rejected the applicant's claim that the police were interested in him because of illegal conch fishing due to his evidence on this issue being vague, limited and implausible. 29 The Tribunal accepted that the applicant had departed Sri Lanka illegally and would be dealt with upon his return to Sri Lanka under the Immigrants and Emigrants Act. The Tribunal accepted that the applicant might be placed in overcrowded and poor conditions on remand for a short period. However, the Tribunal did not accept that the authorities would be intentionally seeking to harm the applicant by placing him in such conditions. The Tribunal considered that the risk of mistreatment of the applicant as a returnee in a Sri Lankan remand centre was low. The Tribunal also considered that the risks faced by the applicant in remand were risks faced by the population generally and for that reason were not to be taken to constitute significant harm under s.36(2B)(c) of the Migration Act 1958 ("the Act") 28 The grounds of review proposed to be advanced, if the extension of time were to be granted, were that the decision of the Tribunal "was affected by an error of law" and that the applicant had been "denied procedural fairness". The primary judge noted that the first of these grounds was not the subject of particulars and that when pressed during the course of the hearing the applicant was unable to advance his criticism of the decision beyond an assertion that the Tribunal had not "checked his case properly" and had not "been fair" 29 Nevertheless, the primary judge records considering submissions from the Minister in relation to three alternative bases upon which the Tribunal determined that the applicant did not face significant harm if he were held on remand for a short period upon his return to Sri Lanka. 30 The first was that the authorities would not be seeking intentionally to harm the applicant and that as a consequence, protection obligations do not arise in respect of the applicant being remanded for a short period of time. The primary judge found (at [34]) that the decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 (SZTAL) upheld this approach, with the consequence that there was no reasonable prospect of a challenge to the decision of the Tribunal succeeding on this basis. 31 The second was that, as a matter of fact and degree, the Tribunal considered that the risk of the applicant suffering mistreatment at the hands of the authorities was low. The primary judge considered that there was no reasonable prospect of success of such an argument succeeding. 32 The third was that the Tribunal had determined that any risk that the applicant faced whilst on remand was faced by the population generally, and consequently was not to be taken to be a real risk of significant harm pursuant to s 36(2B)(c) of the Act. In this regard, the primary judge considered (at [36]) that the Tribunal was bound to reach this conclusion by virtue of the reasoning of Rares J in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [10]-[13] and that she was similarly bound. 33 As a result of these matters, the primary judge concluded that there is no reasonable prospect that the applicant could succeed in his substantive application for review on issues relating to his being held on remand upon his return to Sri Lanka. 34 In relation to the ground of absence of procedural fairness, the primary judge noted that the applicant had attended a hearing with the assistance of his girlfriend and that the issues for consideration were well known to the applicant by reason of the contents of the delegate's decision. 35 In the result, the primary judge found that it would not be appropriate to reinstate the application for an extension of time because there was "very little" prospect of the applicant succeeding on any basis in relation to the substantive application for review (at [40]).

THE PRESENT APPLICATION 36 The present application is an application for an extension of time within which to file and application for leave to appeal. It involves consideration of conduct by the applicant which is now familiar. He has again failed to file an application for leave to appeal from the decision of the FCCA within the time prescribed by the legislative regime. In the present case his application has been filed 3 months and 6 days late. He has again provided an explanation for his delay. Again he claims to suffer prejudice if his extension is refused and again it is necessary to consider questions of prejudice suffered by the respective parties and the strength of the proposed grounds of appeal. In the present case that involves consideration of the strength of his challenge to the reasoning of the primary judge. 37 The explanation for the delay offered by the applicant is set out in his affidavit in support and has been quoted at [8] above. In summary, the applicant elected to seek the exercise of a Ministerial discretion pursuant to s 417 of the Act rather than apply for leave to appeal. The applicant's evidence is that the Minister declined to intervene, following which he made the present application. However, there is no explanation as to why the applicant did not file an application for review and then seek Ministerial intervention. There is no reason why an application for judicial review could not be made at the same time as the application for Ministerial intervention: see WZAVL v Minister for Immigration and Border Protection [2016] FCA 334 (WZAVL) at [34] (Farrell J) citing Re Ruddock; Ex parte LX [2003] FCA 561 at [42] (Heerey J). The Minister submits that the applicant, in seeking Ministerial intervention, elected not to pursue a route of redress through the courts and that as a consequence implicitly recognised that the underlying administrative decision was valid, but ought to be varied through extenuating circumstances, citing SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389 at [76] (Griffiths J). The Minister filed additional submissions after the hearing addressing this issue. Those submissions reiterate the argument put forward by the Minister that the applicant's making of a request for an intervention, and waiting on the outcome before commencing an application for judicial review, demonstrated a conscious or forensic choice to pursue an alternative remedy. A choice to pursue Ministerial intervention, it was submitted, may be inconsistent with an intention to pursue appeal rights (and therefore inconsistent with contesting the correctness of the FCCA judgment). The Minister cited WZAVL at [33]-[35] (Farrell J) and NAPF v Minister for Immigration and Border Protection [2017] FCA 117 at [9] (Griffiths J) in support of this argument. The applicant filed submissions in response to the Minister's additional submissions, but those submissions simply restated the position already put forward by the applicant. 38 For my part I would be reluctant to consider the evaluation of the applicant's reasons for delay by reference to the question of election. It is doubtful that the applicant, who is a young self-represented litigant, had any notion that he was making an election. However, I do consider that it was unreasonable in the circumstances for the applicant to defer making any application to the Court until he heard the outcome of the Minister's decision. The history of the present case through the courts must have demonstrated to him the need to comply with relevant time limits. His failure to do so before this court is not adequately explained by his approach to the Minister. 39 Plainly enough the applicant will suffer prejudice if the extension of time application is not determined in his favour. Conversely, the Minister does not claim to suffer prejudice in the event that the extension of time is granted. 40 I now turn to consider the likely prospect of success of the appeal from the decision of the primary judge. I have set out the draft grounds of appeal in [9] above. They contend that the primary judge erred in concluding that there was very little prospect of the applicant succeeding on any basis in relation to his substantive application, especially in relation to him being held on remand in a Sri Lankan jail. The grounds further assert that the primary judge ought to have considered if she could be satisfied that any pain or suffering caused by the conditions in the prison would be intentionally inflicted on the applicant. They assert, in other words, that the court should have evaluated the nature and gravity of the loss of liberty that the applicant is likely to suffer in the event that he is detained upon his return to Sri Lanka. 41 I have set out in some detail the findings and conclusions of the learned primary judge in the context of the claims made by the applicant that he would suffer harm if he were to return to Sri Lanka. She paid particular attention to the consequences of the applicant being held on remand pursuant to the Immigrants and Emigrants Act. In this connection it is to be noted that while her decision was reserved, the primary judge received submissions from the Minister as to the consequences flowing from the decision of the High Court in SZTAL. The applicant indicated that he did not wish to file submissions in answer. 42 The primary judge properly took an impressionistic approach to considering whether the applicant had an arguable case in his claim that the Tribunal fell into jurisdictional error. She considered whether there was merit in the proposition that a returned, failed asylum seeker might be entitled to rely on the complementary protection regime under the Act. This was not a specific allegation pleaded in the applicant's grounds of review, but an avenue that the Minister nevertheless addressed in his submissions. The primary judge concluded, having regard to SZTAL, that there was not any reasonable prospect of such an argument succeeding, because any harm suffered within the Sri Lankan prison could not be considered to be "intentional". Having regard to the reasoning of the High Court in SZTAL, (see, for example, at [28], [29]) I am unable to discern any arguable error in that conclusion. 43 Although not raised in the draft grounds of appeal, I have considered the other bases upon which the primary judge concluded that the applicant had no reasonable prospect of succeeding in his application for review, and, with respect, can see no basis upon which it may be said that her conclusions were wrong. 44 In the decision below, the primary judge found that the applicant had provided a reasonable explanation for failing to appear at the hearing conducted on 21 July 2017. She did not make a finding of whether he had provided a reasonable explanation for his 13 day delay in filing his reinstatement application. She found that for each, the prejudice that would be suffered by the applicant would be significant should his applications fail, but that the Minister would not so suffer. Accordingly, the weight of the primary judge's consideration adverse to the applicant fell upon a consideration of the substantive merits of the proposed review of the Tribunal's decision. 45 In some cases the Court might have some disquiet in placing too much weight on those merits where the other factors relevant to the exercise of the discretion of the court point in favour of the grant of leave. After all, the root cause of the present series of interlocutory steps was a failure on the part of the applicant to file his application for review within less than two weeks of the prescribed time. Questions of procedural fairness may arise where a self-represented litigant appears at an extension of time application and is obliged, in effect, to argue the substance of the application which he has not yet been granted leave to file. However, the present is not such a case. The Minister had tendered the submissions filed in advance of the hearing before the primary judge which demonstrate that the Minister squarely, and in some detail, challenged the fundamental basis of the proposed grounds of review. Supplementary submissions were filed whilst the primary judge's decision was reserved concerning the decision in SZTAL and the applicant was given an opportunity to respond to them. Accordingly, having regard to all of the materials, and bearing in mind the considerations articulated in House v The King, I consider that the applicant does not have a reasonable prospect of succeeding in overturning the decision of the primary judge. 46 It is apparent from the above that I would not grant the applicant leave to appeal from the decision of the FCCA. However, I should record that I would also decline to exercise my discretion to extend the time for filing the application for leave to appeal. Having regard to the explanation for the delay that has been provided, the length of the delay in filing the application and the poor prospects of the proposed appeal, I do not regard it to be in the interests of justice to grant the extension of time sought.

DISPOSITION 47 The application for an extension of time and leave to appeal filed on 26 February 2018 should be dismissed. The applicant should pay the first respondent's costs of the application. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.