THE EXTENSION OF TIME AND LEAVE TO APPEAL APPLICATION - GROUNDS AND SUBMISSIONS
18 The applicant sought an extension of time and leave to appeal from the judgment of the Federal Circuit Court. Leave to appeal was required because the dismissal of the applicant's case pursuant to r 44.12 of the Federal Circuit Court Rules was an interlocutory decision. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from an interlocutory judgment unless the Court or a judge gives leave. An extension of time was required because r 35.13 of the Federal Court Rules 2011 (Cth) provides that an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced. The applicant filed his application for leave to appeal 11 days outside that time period.
19 A consideration relevant to the exercise of the court's discretion to extend the time within which an application for leave to appeal may be filed is the likelihood of leave to appeal being granted: Croker v Philips Electronics Australia Ltd [2000] FCA 1731 at [5]. In considering whether leave to appeal should be granted, the first limb of the relevant test involves a consideration of whether the decision is attended with sufficient doubt to warrant it being reconsidered by an appellate court: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400.
20 It is convenient, then, to first consider whether the applicant has demonstrated that the decision of the primary judge is attended with sufficient doubt to warrant the grant of leave. The starting point is the draft grounds of appeal. Unfortunately, like the applicant's grounds of review in the court below, the draft notice of appeal was, to say the very least, unhelpful. It sought to agitate arguments concerning the Tribunal's decision that were either not advanced before the primary judge, or amounted to little more than arguments concerning the merits of the Tribunal's findings.
21 The draft notice of appeal contained the following six grounds:
1. The Federal Circuit Court Judge erred by failing to find that the Tribunal Member made an error of law in that the Tribunal Member has deprived me of natural justice and procedural fairness by failing to carry out its task constructively and lawfully in my case.
2. I was denied procedural fairness based on the Tribunal's findings that I lacked credibility and the rejection of my claims and evidence. The finding that the Tribunal actually made in my case was an irrelevant finding because the Tribunal's finding is based on its arbitrary views rather than facts towards my claims and evidence.
3. It is contended that the Tribunal Member erred by ignoring or undermining my claims on the issue of my suffering and fear of serious harm on return to Nepal in concluding that my brother was not killed and I had no political interest or opinion and l had held/hold no fear of persecution because of my political opinion in the past and present having regard to the material upon which it relied, that reliance being irrational and unreasonable.
4. I contend that the Tribunal's reasons ignored to deal with important elements of my claims which included the claim to have an actual political opinion because of my anti-Maoists attitude. The invitation to comment at the hearing was unnecessarily uninformative and in the circumstances inadequate.
5. The Tribunal Member made its mind not to believe me and my answers were squarely dismissive in which my case was taken in breach of the rules of procedural fairness and natural justice.
6. The Tribunal did not comply with the requirements of s.424A. The Tribunal did not provide its adverse information in writing as required by s.424A (2)(a) and s.441A of the Act.
22 The applicant did not file any written submissions, despite having been directed to do so. The applicant appeared unrepresented at the hearing of the application. While he advanced some oral submissions, those submissions did not advance his cause. The applicant simply said that he continued to fear for his life should he be forced to return to Nepal and felt that the Tribunal and the Circuit Court judge did not give his matter due consideration.
23 The merits of the proposed grounds of appeal may be dealt with in short terms.
24 The essence of the applicant's first proposed ground of appeal is that the primary judge erred in not finding that the Tribunal denied him procedural fairness. The problem for the applicant is that he did not argue in the court below that the Tribunal denied him procedural fairness. The applicant's grounds of review did include a contention that the Tribunal had failed to comply with s 424A of the Migration Act, though as has been seen the applicant failed to advance any argument in support of that contention before the primary judge. The primary judge was correct to dismiss any suggestion that there had been a breach of s 424A. As for any broader allegation of denial of procedural fairness, the primary judge found that it was obvious from the Tribunal's record of what occurred at the hearing that the applicant was on notice of the significant issues upon which the review would turn. His Honour was correct in so finding. The applicant failed to advance any other comprehensible or meaningful submission in support of the allegation that he was denied procedural fairness. Proposed appeal ground 1 has no merit.
25 The applicant's second proposed ground of appeal also raises an argument that the Tribunal denied him procedural fairness. The alleged denial of procedural fairness is based on the proposition that the Tribunal's adverse credibility finding was arbitrary and not based on the evidence. As with proposed appeal ground 1, the first problem for the applicant is that this argument was not advanced in the Circuit Court. In any event, the argument has no substance whatsoever. A fair reading of the Tribunal's reasons reveals that the Tribunal's findings concerning the applicant's credibility were based on the evidence and were anything but arbitrary. The findings were logical and rational and open on the evidence. Proposed appeal ground 2 has no merit.
26 The applicant's third proposed appeal ground appears to do little more than raise arguments concerning factual findings made by the Tribunal and the merits of the Tribunal's decision. It does not directly engage with any ground of review agitated in the Circuit Court, or allege any appellable error on the part of the primary judge. The contention that the Tribunal ignored the applicant's claims, or that its findings were otherwise irrational or unreasonable, has no merit. The Tribunal's factual findings were open to it on the evidence and were not in any sense irrational or illogical or otherwise open to judicial review. Proposed appeal ground 3 is without substance.
27 The applicant's fourth proposed ground of appeal asserts that the Tribunal ignored important elements of his claims. While a similar allegation was made in ground 2 of the applicant's review application in the Circuit Court, it does not appear that the applicant advanced any arguments before the primary judge in support of it. Nor did he advance any arguments in support of this allegation in this Court. As was the case in the Circuit Court, the applicant did not even attempt to identify what important elements of his claims were ignored. A fair reading of the Tribunal's reasons reveals that it did not ignore any aspect of the applicant's claims. Rather, the Tribunal found that the applicant's evidence was not credible and therefore did not accept any of his claims. That is not to ignore the applicant's claims. It is to reject them.
28 The applicant's fifth proposed appeal ground returns again to the theme of denial of procedural fairness. This time the allegation appears to be that the Tribunal prejudged his case. No such argument was put to the primary judge. In any event, the argument is entirely without foundation. The argument appears to be based on nothing more than the Tribunal's reasons. That is a hard road to hoe: see the observations of North and Lander JJ in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [18]. As Katzmann J noted in that case, where an argument of bias (which would include prejudgment) is based on the Tribunal's reasons alone, if the reasoning process withstands scrutiny as being neither illogical nor irrational, there is no foundation for a conclusion that the decision is tainted by actual or apprehended bias. The Tribunal's reasons in this matter do withstand scrutiny as being neither illogical nor irrational, and there is accordingly no basis for the allegation of prejudgment. Proposed appeal ground 5 has no merit.
29 Proposed appeal ground 6 concerns the allegation that the Tribunal did not comply with s 424A of the Migration Act. As has already been noted, this was one of the applicant's grounds of review below, but at the show cause hearing he was unable to point to any information that should have been, but was not, notified to him pursuant to s 424A. Nor did he identify any such information in support of proposed appeal ground 6. The primary judge was correct to dismiss any suggestion that the Tribunal did not comply with s 424A. This proposed appeal ground has no merit.
30 There is, accordingly, no merit in any of the proposed grounds of appeal. I should add that, putting aside those grounds and submissions, in light of the fact that the applicant was not legally represented, I have closely reviewed the decisions and reasons of the Tribunal and the judgment of the primary judge. I can discern no error in the way the Tribunal conducted and determined the applicant's review application. Nor can I discern any error in the judgment of the primary judge. It follows that the decision in respect of which leave to appeal is sought is not attended by sufficient doubt to warrant the grant of leave to appeal. It is therefore unnecessary to consider the second limb of the test for granting leave to appeal: whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor at 398.
31 In those circumstances, granting the applicant an extension of time to file an application for leave to appeal would be an exercise in futility. Leave to appeal would, in any event, be refused.
32 For completeness, it should also be added that, for the applicant to obtain an extension of time, he was required to give an adequate explanation for his failure to file his application within time. The applicant filed an affidavit in which he proffered an explanation for his failure to file an application within time. That explanation was far from adequate or satisfactory. The applicant claimed that he was unable to file an application for leave to appeal within the deadline due to financial hardship. He stated that he applied to the court for a fee waiver but was refused because of a lack of proper documentation and evidence.
33 The difficulty is that the applicant's evidence was entirely bereft of any detail. He provided no details of his financial circumstances or employment status. He did not say how or when he approached the Court for a fee waiver. Nor did he indicate exactly why his documentation and evidence in support of a fee waiver was found to be wanting. It may well have been because he was in fact unable to establish financial hardship.
34 The unsatisfactory explanation provides an additional reason to refuse the applicant leave for an extension of time. It must be said, however, that if there was even a scintilla of merit in the leave application, it is doubtful that the inadequacy of the explanation alone would have justified refusal of the application to extend time.