BZA16 v Minister for Immigration and Border Protection

1. Subject to Order 2 below, the application for an extension of time in which to file a notice of appeal be dismissed with costs.
2. Order 1 be stayed and not be of effect until 4 February 2019 or further order of the Court.
3. On or before 21 January 2019, the applicant file and serve written submissions in support of any appeal should an extension of time be granted.
4. If no submissions are filed, or if the submissions filed show no arguable basis for the appeal, the stay of Order 1 will be lifted and Order 1 will take effect on 4 February 2019.
5. If the submissions reveal an arguable basis for the appeal, the first respondent will be called upon to answer those submissions.
6. The proceeding be stood over to 9:30am on 4 February 2019, or such other time as the parties are informed by the Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 This is an application for an extension of time in which to file an application for leave to appeal against orders made by a judge of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal. However, the applicant has a right to appeal and so the application should be viewed only as an application for an extension of time to file a notice of appeal. 2 The applicant is a citizen of Sri Lanka and of Sinhalese ethnicity. He is self-represented. He has said before me that he cannot read or write. He arrived in Australia on 13 June 2012 as an unauthorised maritime arrival. He applied for a Protection (Class XA) visa in November 2012. 3 The basis of his claim was various. The relevant aspects of the claims were as follows: his involvement with the United National Party (UNP); his detention for 14 days due to his involvement in a fight or brawl with members of an opposing political party; his detention for over two years in connection with more fighting that occurred; the contravention of his bail requirements from his release in 2008 or 2009; his work as a diver for a man who was arrested and accused of supporting the Liberation Tigers of Tamil Ealam (LTTE); his illegal departure from Sri Lanka; and his return, if he were to return, as a failed asylum seeker. 4 The Tribunal affirmed the delegate's decision to refuse the visa. The Tribunal did not accept that the applicant had worked for a man with LTTE links, that he had been kidnapped as a result of this, that he had supported the UNP, that he had experienced problems because of his political opinions, or that he had been detained and imprisoned. The Tribunal's findings were a comprehensive rejection of the evidence of the applicant. The applicant sought judicial review to the Federal Circuit Court. 5 The applicant submitted two grounds before the primary judge, both of which were assertions that the Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) by failing to give him an opportunity to give evidence or present arguments. The primary judge dismissed the application. 6 The primary judge expressed the view agreeing with the submissions of the first respondent that the law governing the imposition of fines for illegal departure was a law of general application. It is unnecessary to deal at length with the reasons of the Federal Circuit Court further on this ground. 7 The primary judge also accepted the first respondent's submissions that the Tribunal did not find that the applicant's family would pay a surety for his release. Rather, the Tribunal found that they would act as guarantor. Further, the primary judge agreed with the first respondent's submission that the applicant's own evidence showed that he had a large family in Sri Lanka who would be able to provide bail if necessary. 8 The present application is for an extension of time. 9 The application was over two months out of time. It is relevant to consider both the length of delay and the prospects of success. 10 In an affidavit of 27 August 2018, filed on 31 August 2018, the applicant explained the delay as follows: I received legal help from the Asylum Seekers Resource Centre for my Federal Circuit Court matter and now I am not receiving the legal assistance. There was no assistance for me for several months. I am a person with limited education. It took me some time to file this application due to my lack of knowledge. 11 The first respondent does not rely on any particular prejudice, but says that the delay has not been adequately explained. More importantly, the first respondent points out that there are no submissions before the Court as to the merits of any appeal, should an extension of time be granted. 12 On 24 October 2018, I caused my associate to write to the parties. In that letter, I directed that the applicant file an affidavit or submissions by 20 November 2018, including but not limited to submissions on the merit of any appeal, should an extension of time be granted. No submissions have been filed and no affidavit has been filed other than the short affidavit to which I have made reference. 13 Whilst the explanation of the delay is brief, I would not reject the application because of any inadequacy in the explanation for the delay. More important, however, is the fact that there are no submissions whatsoever to support the merit of the notice of appeal, which has been filed in draft form. 14 The draft notice of appeal has two proposed grounds of appeal which are as follows: 1. Applicant thinks the order, which is based on the application has a question of law and it should be investigated. 2. Applicant has provided lot of information and supporting documents for his protection Visa application. Applicant believes this information was not considered properly and not granted a fair order. 15 Ground 1 is vague and completely unparticularised in its assertion of error. It does not establish any basis for thinking an appeal would be successful. Ground 2 is a general assertion that the Tribunal should have accepted his material and evidence. Again, without any specificity of submissions, there is no basis to think that an appeal could possibly succeed. 16 When asked today to put what he wished in support of his application, the applicant handed up two documents. The first was a document in Sinhalese which was said to relate to legal proceedings in Sri Lanka. No notice was given of this document to the Minister; and there was no translation. Mr van der Westhuizen, who appears for the Minister, indicated that the document was not relied upon before the Federal Circuit Court judge. I have had the document marked for identification 1 (MFI 1). It is impossible, today, to rely upon it because of the circumstances I have indicated. 17 The second document handed up was the birth certificate of the child born this year to the girlfriend or partner of the applicant. The document was handed to me in part to explain why the applicant has not put on written submissions. The applicant has had since August this year to file submissions or an argument as to why his appeal should succeed. I appreciate that he has no legal assistance at the moment. There is no proper basis before the Court to extend the time for filing of the notice of appeal because no submissions or even an identification of the reasons for error in the primary judge have been put forward. 18 The applicant previously had assistance in relation to his application. From reading the Tribunal decision and the primary judge's reasons, I am not able to see any particular error of the primary judge or the Tribunal. The applicant should understand that it is the Tribunal's responsibility to evaluate his evidence, not the courts'. The courts' role is to assess the legality of the process and reasoning of the Tribunal. As I said, on the material before me, there is no basis upon which I could extend the time for filing a notice of appeal. 19 What I propose to do, in those circumstances, is to dismiss the application for an extension of time in which to file the notice of appeal, but stay the order until Monday, 4 February 2019. I will grant the applicant leave to file written submissions in support of his appeal, to be filed and served by 21 January 2019. If I consider that what has been filed requires an answer from the Minister, I will communicate that to the parties. If nothing is filed, or if what is filed is inadequate to raise any real question, I will dismiss the proceeding on 4 February 2019. 20 The orders of the court are as follows: (1) Subject to Order 2 below, the application for an extension of time in which to file a notice of appeal be dismissed with costs. (2) Order 1 be stayed and not be of effect until 4 February 2019 or further order of the Court. (3) On or before 21 January 2019, the applicant file and serve written submissions in support of any appeal should an extension of time be granted. (4) If no submissions are filed, or if the submissions filed show no arguable basis for the appeal, the stay of Order 1 will be lifted and Order 1 will take effect on 4 February 2019. (5) If the submissions reveal an arguable basis for the appeal, the first respondent will be called upon to answer those submissions. (6) The proceeding be stood over to 9:30am on 4 February 2019, or such other time as the parties are informed by the Court. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.