BZA16 v Minister for Immigration and Border Protection

1. The stay of Order 1 made on 14 December 2018, pursuant to Order 2 made on 14 December 2018, be lifted, with the effect that the application for an extension of time in which to file a notice of appeal be dismissed with costs. 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 and leave to appeal against the orders made by a judge of the Federal Circuit Court of Australia on 6 June 2018 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal made on 27 June 2016. 2 As helpfully pointed out by the first respondent (in the applicant's favour) the decision of the primary judge was to dismiss the application on a final basis. The applicant therefore need not seek leave to appeal, only for the extension of time to be granted in which to fil and serve a notice of appeal. 3 On 14 December 2018, I made orders refusing the extension of time but staying the effect of that order, to permit the applicant one last opportunity to put on submissions in support of his proposed appeal: BZA16 v Minister for Immigration and Border Protection [2018] FCA 2031. He has not done so. In these circumstances, I propose to lift the stay. It is appropriate to set out my reasons in full that supplement the more briefly expressed first judgment. 4 The applicant is a citizen of Sri Lanka and of Sinhalese ethnicity. He is self-represented. The applicant arrived in Australia on 13 June 2012 as an unauthorised maritime arrival, and applied for a Protection (Class XA) visa on 19 November 2012. The essence of his claim is that he fears harm in Sri Lanka because of: his involvement with the United National Party (UNP) in Sri Lanka; his detention for 14 days prior due to his involvement in a "brawl" with members of an opposing political party People's Alliance (although he alleges only the UNP members were detained); his detention for over two years in connection with more fighting that occurred approximately two months after first being released; the bail and reporting requirements imposed upon him from the time of his release in 2008 or 2009 to present while the case against him continues (making him in contravention of those requirements at present); his work as a diver for a man who was arrested and accused of supporting the Liberation Tigers of Tamil Ealam (LTTE) and who has since disappeared (which the applicant claims could impute a pro-LTTE opinion upon him; his illegal departure from Sri Lanka; and his return as a failed asylum seeker. 5 On 24 July 2014, the delegate for the Minister refused to grant the applicant a protection visa. The applicant applied to the Tribunal for review. 6 The Tribunal affirmed the delegate's decision on 27 June 2016. 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 was a supporter of the UNP; that he had experienced problems because of his political opinions; that he had been detained and imprisoned following altercations with opposition party members; that he was the subject of legal proceedings and reporting conditions; or that he had ever been of interest to the Sri Lankan authorities. The Tribunal also reasoned that the applicant does not face a real chance of serious harm stemming from his illegal departure from Sri Lanka and return as a failed asylum seeker. Overall, the Tribunal made adverse credibility findings in respect of the applicant, considering the vague and contradictory nature of the applicant's evidence throughout the process (including the present status of his marriage: [55] of the Tribunal decision. The Tribunal concluded that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention, nor under the complementary protection obligations. 7 The applicant appealed to the Federal Circuit Court for review. In his amended application filed on 15 December 2017, the applicant submitted two grounds, both of which were assertions that the Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) by failing to give the applicant an opportunity to give evidence and present arguments on aspects of the Tribunal's ultimate decision. First, in respect of the applicant's ability to pay any fine due to his illegal departure and the consequences thereof. Secondly, in respect of whether the applicant or his family would be able and willing to provide the surety required for the applicant's bail to secure his release from prison arising out of charges likely to be laid under Sri Lankan law due to his illegal departure. 8 The primary judge dismissed the appeal. In respect of the first ground, the primary judge accepted the first respondent's submissions that the law governing the imposition of fines for illegal departure from Sri Lanka is a law of general application and that therefore the claim was disposed on that basis, not on the basis that the applicant would be able to pay a fine. Even if this finding was relevant to the Tribunal's conclusion, the applicant was not deprived of an opportunity to make submissions on this point. He was on notice of the issue concerning the fine and payment of it from the delegate's decision. The Tribunal does not need to raise at the hearing an issue of which the applicant is already on notice. Indeed, the applicant made submissions on the risk of imprisonment under the same laws, but chose not to address the risk of a fine. 9 As for the second ground, the primary judge 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 they would act as guarantor, which does not necessarily mean money would be paid. Further, the primary judge agreed with the submission that the applicant's own evidence showed that he had a large family in Sri Lanka, including a wife who had previously bailed him out for a separate arrest. There was no indication in the evidence that his wife would no longer wish to, or be able to do so, again. 10 In the present application, the applicant seeks an extension of time to file the notice of appeal in accordance with r 36.05 of the Federal Court Rules 2011 (Cth). This notice of appeal was required to be filed within 21 days of the handing down of the Federal Circuit Court judgment; that is, by 27 June 2018. This was not done. The application for an extension of time was made just over two months after the last day for filing of a notice of appeal, on 31 August 2018. 11 In an application for an extension of time, the Court is to consider the length of the delay, any prejudice it may have caused to the other party, the explanation for the delay, and the substantive merits of the proposed appeal: see BOA15 v Minister for Immigration and Border Protection [2016] FCA 214; 151 ALD 352 at [19]; SZSPR v Minister for Immigration & Border Protection and Another [2013] FCA 1210; (2013) 139 ALD 109 at 113 [16]; Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 348-349. 12 In an affidavit made on 27 August 2018 and filed on 31 August 2018, the applicant explains 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. 13 The first respondent did not rely on prejudice to oppose the application for an extension of time. Therefore, the considerations before me were the length of and explanation for the delay, and the merits of the substantive appeal. 14 The delay is just over two months. I do not take the view that this is a particularly significant delay. I note that the applicant submits that his limited education and lack of knowledge are the reasons for the delay. I do agree with the first respondent's submission that the applicant's circumstances are similar to those of many applicants in the courts. Even applicants for whom English is a first language can find navigating the court system a challenging task. (Hence the need for a certain level of legal aid and assistance to be provided for the most vulnerable in our society.) 15 Yet, this is not, in itself, necessarily sufficient to justify the delay. It is necessary for me to consider the merits of the substantive appeal. 16 The applicant's draft Notice of Appeal has two proposed grounds of appeal, extracted unchanged below: 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. 17 The applicant has not filed any written submissions further particularising these grounds. 18 Ground 1 is very vague and, as put by the first respondent, is at its highest an unparticularised allegation of an error of law. It does not establish any appellable error by the primary judge or jurisdictional error by the Tribunal. 19 Ground 2 alleges that some of the information and supporting documents provide y the applicant for his protection visa application was not considered properly. Again, there is no particularisation of this ground. 20 Further, as the first respondent submitted, the ground was not advanced below (when the applicant was represented) and therefore needs leave of the Court to be pursued. Generally, unless there are exceptional circumstances, or a new ground clearly has merit, or there will be no real prejudice to the respondent in allowing agitation of the new ground, the Court will not grant leave for the new ground to be pleaded: see Charlesworth J in AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433 at [17]-[23] and the cases cited within. 21 The fact that the applicant was represented below is also a factor tending towards not allowing the new ground. In Prodduturi v Minister for Immigration and Border Protection [2014] FCA 624; 142 ALD 550 at [28], the Court stated that "the absence of an explanation combined with the fact that the appellant was represented at trial, means that if leave were now to be granted the difference between a trial and an appeal would effectively be elided" (see also SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [38]). 22 In this context, at the hearing of the matter on 14 December 2018, I was not inclined to grant leave for the new ground to be pleaded in this Court. Even if leave were granted, the ground does not have merit. There was no particularisation and, from my reading of the reasons of the Tribunal and of the primary judge, no apparent error in their examination of the evidence and claims put before them. As I noted at [3] above, I therefore made orders refusing the extension of time but stayed that order until 4 February 2019 to give the applicant an opportunity to file submissions in support of any appeal. The submissions filed on 21 January 2019 explained the delay in filing the notice of appeal but did not address the substantive appeal should an extension of time be granted. 23 In these circumstances, the stay of Order 1 made on 14 December 2018, pursuant to Order 2 made on 14 December 2018, will be lifted, with the effect that the application for an extension of time be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.