DHA16 v Minister For Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2019-09-03|Before: Smith J

The applicant's protection claim 15 The applicant's protection claims were summarised by the Authority as follows: • The applicant was born to Sinhalese parents in Puttalam District, North Western Province. The applicant married a Muslim woman and adopted Islam as his religion. • The applicant worked as a fisherman in Sri Lanka. He found it difficult to earn sufficient income as a fisherman and he had to borrow money. • He attempted to leave Sri Lanka in 2002 and was part of the crew that took asylum seekers on a boat bound for Italy. They were intercepted and returned to Sri Lanka. He was questioned by authorities about this venture on return. • The applicant made a further attempt to leave Sri Lanka and paid money to an agent who cheated him. He had borrowed this money and was not able to repay the funds. He was harassed about non-payment. • He accepted an offer to captain a boat of asylum seekers to Australia in 2012. • Since his departure the CID have visited his wife to ask about his whereabouts. The CID had two crew members from the 2012 boat venture with them on this visit. These crew members have given information to the CID and one has falsely stated that he paid money to the applicant. • He fears that on return he will be punished under the Immigrants and Emigrants Act. He may be detained without bail as investigations are carried out. He faces ill-treatment and torture while in detention. If he refuses to provide information he will be tortured. If he gives the authorities information about the people smugglers those people will find out and punish him. His fear extends to all Sri Lanka as the authorities and people smugglers will be able to find him wherever he lives. He fears that he will be prosecuted as a people smuggler and gaoled. He fears that because of the earlier aborted trip to Italy he will receive a significant gaol term. He will face harm in prison because of his Muslim faith. • The applicant fears that a data breach has rendered him a refugee sur place.

The Authority's findings 16 The Authority began by noting that the applicant had provided a submission to the Authority contending that the Minister's delegate denied him natural justice in that he did not give the applicant the right to be heard in relation to a historic data breach (a matter not now pursued). It rejected such claims, noting that the delegate provided the applicant's representative seven days to provide further information, and the representative took that opportunity. No new information was provided to the Authority. 17 The Authority then summarised the applicant's protection claims as above. 18 The Authority accepted that the applicant was part of the crew in the 2002 voyage, and that in 2012 he captained a boat of asylum seekers that came to Australia. It further accepted that the Sri Lankan Criminal Investigation Department (CID) had visited the applicant's wife since his departure to ask about his whereabouts, and that other crew members from the boat captained by the applicant have returned to Sri Lanka and given information to the CID about the applicant's role in the venture. It did not, however, accept the claim that the CID had brought two crew members with them on its visit to the applicant's wife. 19 The Authority considered whether the applicant would face persecution on the basis of being a failed asylum seeker who left illegally by boat. It accepted the applicant may be subject to arrest and interrogation by the authorities upon his return because under the Sri Lankan Immigrants and Emigrants Act 1949 (I&E Act) it is an offence to depart Sri Lanka in that manner. It considered the usual outcome of such a charge is a fine. 20 The Authority considered what would happen upon the applicant's return to the airport in Sri Lanka, noting that most returnees are questioned by police and charged. Those arrested may remain in police custody at the airport or at a nearby prison. The Authority accepted the applicant may be held in detention for a period but that such detention did not rise to the level of serious harm. 21 Because the applicant contends that certain matters were not properly taken into account, it is appropriate to include certain parts of the Authority's reasons: 18. I accept that the applicant may be considered by Sri Lanka authorities to be a failed asylum seeker and I cannot discount that the Sri Lanka government may have access to the applicant's details following the data breach incident. DFAT has reported that it is not aware of any specific post-arrival monitoring of recently returned failed asylum seekers. Monitoring and fears about mistreatment have reduced under the current Sirisena government and the risk of harm for the majority of returnees is low. The applicant has no LTTE links or other profile that would be of particular interest to Sri Lankan authorities and would lead to him facing a real chance of persecution in Sri Lanka. After considering the relevant country information, I am not satisfied that the applicant faces a real chance of persecution from the Sri Lankan authorities as a result of his being a failed asylum seeker. 19. In addition to having departed Sri Lanka illegally, I accept that in 2012 the applicant captained a boat carrying asylum seekers from Sri Lanka to Australia and recruited crew members for the venture. DFAT reports that Sri Lanka's Attorney General's Department distinguishes between those suspected of being passengers on a people smuggling venture and those suspected of facilitating or organising the irregular migration of people from Sri Lanka. Facilitators or organisers can be charged with an offence under s.45C of the I&E Act. DFAT advised that in several cases, returnees have been charged and convicted of immigration offences. As of March 2014, at least one charge had been upheld upon appeal. 20. I accept that the applicant could be charged under s.45C of the I&E Act. I also accept that this is the second time the applicant has been involved with sailing a boat of asylum seekers. The applicant was not charged with any offences when he returned after the 2002 venture and as such there is no indication that he has breached any bail conditions or other court orders when he departed illegally the second time in 2012. However, I accept that the 2002 venture could be taken into account if he is prosecuted on return to Sri Lanka. 21. However, I find that any penalty received would be the result of a law of general application. Country information cited above indicates that the process and the treatment to which the applicant will be subject under the I&E Act is not discriminatory nor is it applied in a discriminatory manner. Rather it is a law which applies to all Sri Lankans. A generally applicable law will not ordinarily constitute persecution because the application of the law does not amount to discrimination. As such I find the treatment the applicant will face as a consequence of the application of the I&E Act is not persecution within the meaning of the Act. 22. I have had regard to the contention that although the applicant did not organise any people for this venture and that his role was limited to captaining the boat, he could be prosecuted as a people smuggler 'even though I did not commit these offences' and, that by being charged for an offence he did not commit, this cannot be regarded as a law of general application. I consider the claims of possible charges for offences not committed to be speculative. I accept that the applicant may be investigated to determine whether he has committed any offence under s.45C of the I&E Act and it is possible that his captaining of the boat may be found to amount to an offence under that Act. I do not consider that such a charge, if it were laid, is being applied on a discriminatory basis or is being selectively enforced, and as such I am satisfied that it is a law of general application and is not persecution within the meaning of the Act. 23. I have not accepted that the CID attended the family home in 2012 with the former crew members, however I have accepted that both or one of these crew members may have given information to the CID about the applicant and the 2012 venture. I find that it is speculative to consider that this will lead to a prosecution for crimes the applicant did not commit. I note the reference in the submission dated 29 July 2016 to 'President Sirisena's promise ... to deal severely with the people smugglers' however there is nothing in the evidence before me to suggest that prosecutions of people smugglers have been based on false testimony or evidence. 24. I accept that if the applicant was charged under s.45C of the I&E Act, he would be denied bail. Country information indicates that due to lack of resources and a large backlog of cases in the courts, pre-trial detention in Sri Lanka is often lengthy and there is a real chance he would be remanded or detained in prison for an extended period. 25. I note the applicant's fear of torture whilst held in detention or in prison and I have had regard to country information cited in the submission to the delegate dated 29 July 2016. I accept that there are credible reports of mistreatment in prison and I note the reference to the Amnesty International report of July 2014 that 'all ethnic groups in Sri Lanka are at risk of torture and other ill-treatment'. However I take account that reports of mistreatment largely refer to Tamils, people with LTTE links and people charged under the Prevention of Terrorism Act. Furthermore, DFAT has assessed the risk of torture or mistreatment for people suspected of an offence under the I&E Act is low. I note that the applicant is not Tamil and does not have any LTTE links and I consider the chance that he would experience torture while being detained or in prison is remote. 26. I note that the applicant may be subjected to poor prison conditions during detention or imprisonment, but country information confirms this is due to overcrowding, poor sanitation and lack of resources. On 27 February 2015, the Sri Lankan government held a 'High Level Roundtable on the Legal and Judicial Causes of Prison Overcrowding', from which a taskforce has been established to address the issues. The ICRC will be providing technical and logistical support to the Task Force. In these circumstances, I do not consider the poor prison conditions or the lengthy period of detention to which the applicant may be subject are applied discriminatorily. As a result I find the treatment the applicant may face as a consequence of this application of the I&E Act is not persecution within the meaning of the Act. … 28. The applicant fears that if he gives information to the authorities about the people smuggling venture the people smugglers will become aware of this and harm him. I consider this claim to be highly speculative and dependent on the applicant being charged, the applicant providing information to the authorities, and the people smugglers becoming aware that the applicant provided such information and then taking action against the applicant. Furthermore, I note the CID are already aware of the venture by way of the returned crew members and if they wanted to take action against this particular people smuggling venture they could have done so via the information from the crew members in the ensuing four years. As such it seems highly unlikely that any further information the applicant could give the authorities would result in adverse attention from the people smugglers. There is no indication in the evidence before me that people smuggling syndicates are pursuing and harming people who give evidence to the authorities about the ventures in which they have been involved. I am not satisfied there is a real chance of harm to the applicant from the people smugglers. … 36. I have accepted the applicant departed Sri Lanka illegally and captained a boat carrying asylum seekers from Sri Lanka to Australia in 2012, and his involvement in the 2002 venture, and that he is liable to be charged under s.45C of the I&E Act. I note that if he was charged he would be denied bail. Country information indicates pre-trial detention in Sri Lanka is often lengthy and, there is a real chance he would be remanded or detained in prison for an extended period. 37. As noted, DFAT has assessed the risk of torture or mistreatment for people suspected of an offence under the I&E Act is low. I note that the applicant may be subjected to poor prison conditions during his detention or imprisonment, but country information confirms this is due to overcrowding, poor sanitation and lack of resources. The evidence does not suggest any intention to inflict pain or suffering or extreme humiliation. Furthermore, it does not amount to the death penalty, arbitrary deprivation of life or torture. In these circumstances, the poor prison conditions and the lengthy period of detention to which the applicant may be subject do not of themselves constitute significant harm as defined by the Act. For these reasons, I am not satisfied the applicant will face a real risk of significant harm as a result of his involvement captaining a boat of asylum seekers leaving Sri Lanka. (footnotes omitted) 22 Accordingly, the Authority found that the applicant did not meet the requirements of the definition of refugee under the Migration Act 1958 (Cth) and did not meet the criterion for convention obligations. 23 Accordingly, the Authority dismissed the application for a protection visa.

Before the Federal Circuit Court 24 The applicant's written submissions raised one ground of appeal before the Federal Circuit Court. It is not relevant to this appeal. The ground was not upheld and the application was dismissed.

Grounds of appeal 25 The grounds that the applicant now seeks to rely upon are as follows: 1. The Federal Circuit Court erred in failing to find that the IAA failed to give active intellectual consideration to the Appellant's claim or failed to consider all integers of the Appellant's claim in that it: a. Failed to consider that the Appellant belonged to a Particular Social Group, being 'Returned People Smuggler Vessel Captains'. b. Failed to consider that the Appellant would be imputed with pro-Tamil political opinion, and thus failed to consider the effect of such a finding. 2. The Federal Circuit Court erred in not finding that the IAA acted unreasonably, illogically, irrationally, without active intellectual consideration or misapprehending and misapplying the evidence in determining that the chance of the Appellant suffering from torture was remote.

Ground 1(a) 26 The applicant submits that the Authority failed to consider whether the applicant was a member of the group defined as 'returned people smuggler vessel captains'. He submits that the group has specific characteristics, being an increased likelihood of refusal of bail, detention or torture as compared to others, and an imputed Liberation Tigers of Tamil Eelam (LTTE) connection. 27 The applicant submits that even if this point was not put to the Authority, it arose squarely on the material in the manner contemplated in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]. 28 The applicant asserts that 'returned people smuggler vessel captains' is a particular social group as that term was assessed in, relevantly, Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387: [36] … First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. … 29 To that authority I would add the High Court's detailed consideration of the issue of social groups in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26. 30 The difficulty with the applicant's submission is that the Authority set out the nature of the applicant's protection claim based on the materials before it. It then considered each relevant aspect of that claim. There was no express claim that the applicant sought protection on the basis of being a member of a social group of 'returned people smuggler vessel captains'. 31 There is nothing to suggest that the Authority had before it materials that would have enabled it to assess whether the group to which the applicant now claims to belong is capable of constituting a social group. There is nothing to suggest any submissions were made to that effect before the delegate or Authority. There is nothing to suggest the applicant sought to provide any evidence or country information that would have assisted the Authority. The applicant did not point to any submissions made before the delegate that may have put the Authority on notice of such claim. These matters tell against the submission that a claim based on the purported social group arose clearly from the materials before it. 32 It is not for the Authority to in effect conduct its own investigations. Its role on a Part 7AA fast-track review is constrained by the nature of its statutory task. The task has been described in several authoritative decisions: see eg Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111; and Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534. Importantly, its ability to obtain and rely upon new information is constrained. It was entitled to rely upon the material before it, including the country information. The applicant accepts that nothing in the country information points to the existence of a defined social group as claimed. The country information therefore does not assist in that regard. 33 A judgment that a tribunal has failed to consider a claim not expressly advanced is not lightly to be made: NABE at [68]. In my view, the claim that the applicant was a member of a social group of returned people smuggler vessel captains was not a substantial clearly articulated argument relying on established facts (Dranichnikov at [24]). It did not emerge clearly from the materials. I do not consider a determination that the Authority failed to consider such claim is open having regard to the thresholds required for such determination. 34 The Authority addressed the applicant's claims insofar as they raised his position as a skipper of a boat transporting asylum seekers. In particular, the Authority: (a) specifically referred to, and accepted, the claims that the applicant had been part of a crew that took asylum seekers on a boat bound for Italy in 2002 and that he captained a boat of asylum seekers to Australia in 2012 (paras 6-9); (b) found that the applicant had no LTTE links or other profile that would be of particular interest to authorities in Sri Lanka (para 18); (c) accepted that, as a result of his involvement in sailing/captaining a boat of asylum seekers, the applicant could be charged under s 45C of the I&E Act and that he may be found to have committed an offence under that Act (paras 20-22); (d) accepted that if the applicant was so charged he would be denied bail and that he could be remanded or detained in prison for an extended period (para 24); (e) considered the applicant's claims regarding fear of torture whilst detained or in prison as well as the general conditions that he would face in prison including the country information cited in the submissions provided to the delegate (paras 25-26); (f) found that any treatment that the applicant may face as a consequence of the I&E Act did not amount to persecution (para 26); (g) rejected the claim that he faced a real chance of harm from other people smugglers (para 28); and (h) found that poor prison conditions and the lengthy period of detention that the applicant may be subject to did not, of themselves, constitute significant harm (para 37). 35 Whilst the applicant's membership of the group is itself now propounded as a separate claim, it can be seen that the matters that the applicant says the Authority should have considered in the context of social group claim were in any event addressed. That is, the Authority considered the likelihood of refusal of bail (para 24). It considered there might be detention for a significant period (para 24). It considered the issue of interrogation and torture (para 25). It took into account that the applicant might be asked about the crew (para 28) noting that the CID already had information relevant to that matter. 36 It clearly addressed the claim as made.

Ground 1(b) 37 The applicant challenges the Authority's finding that he does not have any LTTE links, a finding made at paras 18 and 25 of the reasons. The applicant submits that the overwhelming majority of Sri Lankan asylum seekers bound for Australia are of Tamil ethnicity, and most claim to have LTTE connections. The applicant submits that the Authority therefore should have had regard to such alleged facts when evaluating whether the applicant had any LTTE links or a profile that would be of particular interest to the Sri Lankan authorities, as it undoubtedly raises the question of imputed political opinion. The applicant also says that undoubtedly his role in facilitating or organising irregular migration of Tamils and LTTE supporters was capable of being regarded as adverse to the State, and that such a conclusion should be inferred. 38 Again, this is not a claim that emerged clearly from the materials. The applicant made no express claim based on any imputed LTTE links. There was no evidence that the applicant's occupation as a skipper might be used by the authorities to impute to him (as a person returning to Sri Lanka who had left the country illegally) an LTTE connection or political opinion. The applicant relies on inference in circumstances where he had the opportunity to advance such a claim before the Authority. It is accepted that political opinion might be imputed from conduct (the applicant referred to V in this regard) but a claim based on such imputed opinion was not clearly raised or revealed by the materials. 39 Again, having regard to the materials that were before the Authority, the country information does not assist the applicant. It does not provide evidence that his role as a skipper might be used to impute to him an LTTE connection or political opinion. The factual assertions upon which the applicant relies are not found in the country material. The country material does address the issue of imputed LTTE links by referring to the UNHCR's 2012 Eligibility Guidelines for Sri Lanka. Those guidelines note that a person's real or perceived links with the LTTE may give rise to a need for international refugee protection and refer to the following links: 1) persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka; 2) former LTTE combatants or 'cadres'; 3) former LTTE combatants or 'cadres' who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, 'computer branch' or media (newspaper and radio); 4) former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE; 5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; 6) persons with family links or who are dependent on or otherwise closely related to persons with the above profiles. 40 Whilst that list is said to be inclusive, on its face the imputed link relied upon by the applicant does not fall neatly within the items in the list. It is not inconsistent with the Authority's finding of an absence of an LTTE link. 41 Against a backdrop where no claim was clearly revealed based on an imputed LTTE link, no error is apparent in the manner in which the Authority found that the applicant had no LTTE links or other profile that would be of particular interest to Sri Lankan authorities.

Ground 2 42 The applicant submits that the Authority's conclusion that 'the applicant's prospects of being subject to torture or other mistreatment is remote,' is unfounded, illogical and unreasonable. 43 As is clear from its reasons, the Authority considered the risk the applicant might face as a result of charges under both s 45 and s 45C of the I&E Act. 44 In reaching that finding, the Authority referred to a DFAT Country Information Report of 18 December 2015. The applicant submits that the Authority's conclusion was 'clearly derived' from para 4.23 of the Report (page 24), which reads: There have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment (see also 'Treatment of Returnees', below). Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. Under the previous Rajapaksa government, DFAT assessed that the risk of torture or mistreatment for returnees was greater for those suspected of committing serious crimes, including terrorism offences. This was due mostly to the greater exposure these returnees had to authorities on their return which generally includes extended periods of pre-trial detention. While overall monitoring has reduced under the Sirisena government and general fears about mistreatment have reduced, it is difficult to verify if the intent to improve general conditions has yet led to a lower risk of torture or mistreatment of returnees. 45 The applicant submits that this paragraph was not intended to refer to 'organisers and facilitators' and was restricted only to refer to ordinary returnees. He refers to para 5.35 of the report, which reads: The Attorney-General's Department typically distinguishes between those suspected of being passengers on a people smuggling venture and those suspected of facilitating or organising of irregular migration of people from Sri Lanka. Facilitators or organisers can be charged with an offence under Section 45C of the I&E Act. 46 The applicant relies on the Authority's reference to the DFAT assessment that the risk of torture for people suspected of an offence under the I&E Act is low (para 25) and submits that such assessment cannot relate to facilitators or organisers who, it is accepted, may be charged under s 45C. There are difficulties with the manner in which the applicant seeks to interpret this country information. First, para 4.23 also notes that under the previous government DFAT had assessed the risks of torture or mistreatment for returnees was greater for those suspected of committing serious crimes. Therefore, the clause also contemplates the position for those who may have faced more serious crimes. This supports an inclusive reading of the reference to those suspected of offences under the I&E Act, such that it addresses not only those charged or convicted of offences under s 45 but also under s 45C, and in relation to more serious crimes. That is a reading of para 4.23 that was open to the Authority. Similarly, it does not follow that the DFAT reference to there being 'relatively few allegations of torture or mistreatment' from the thousands of returned asylum seekers is limited to allegations by returnees other than those charged under s 45C or facing other serious charges. The country information can be read without such limitation both sensibly and reasonably. How country information is weighed and interpreted is a matter for the Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13]. 47 In any event, the Authority's conclusion was apparently also based on other country information that is listed in the footnotes to its reasons (fn 11). 48 Furthermore, the Authority quite clearly recognised that the DFAT report distinguishes between those suspected of being passengers on a people smuggling venture and those suspected of facilitating or organising the irregular migration of people from Sri Lanka. So much is apparent from its reasons (para 19) that refer to facilitators or organisers being charged under s 45C. As already noted, the Authority considered the risks that might be faced by the applicant having accepted that he might be charged under s 45C (paras 19-22, 24). 49 Even when one has regard to the sentence from para 4.23 of the DFAT report to the effect that DFAT assessed that the risk of torture or mistreatment for returnees was greater for those suspected of committing serious crimes including terrorism offences, it must be recalled that the context was the position under the previous government. It does not follow that the position would be the same under the subsequent government, or that the applicant would face more than a remote risk of torture in detention or prison. 50 It is also important to recall that the Authority did not accept that the applicant had LTTE links (as addressed with respect to ground 1). Its reasons proceeded on the basis that the applicant did not fit that risk profile. 51 To allege that the Authority acted illogically is to say that it reached a finding which was not open on the evidence, or that there was no logical connection between the evidence and the inferences or conclusions drawn. The test is to ask whether there is room for a logical or rational person to reach the same decision on the material before the decision-maker: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135]. In my view and having regard to the reasoning process disclosed by the Authority and its reference to country information, the finding as to the applicant's prospects of being subject to torture or other mistreatment was not illogical. 52 'Unreasonableness' is relied upon by the applicant in his proposed grounds to describe a range of matters said to comprise jurisdictional error, but the submissions focussed on the alleged failure to have regard to the applicant's imputed links. I have addressed that issue for the purpose of ground 1 and in the context of illogicality immediately above. Findings might be said to be unreasonable if they manifest extreme illogicality that takes matters beyond where reasonable minds may differ, but that is not the position in this case. 53 The reasons expose why the Authority's discretion was exercised in a particular way. The reasoning provides an evident and intelligible justifiable for the decision, and accordingly there is no apparent unreasonableness. In my view, those reasons demonstrate a justification for the decision that is within the bounds of reasonableness.

Outcome 54 As I noted above, because there is an extension application and an application to rely on new grounds, it has been necessary to consider the proposed grounds at more than simply the impressionistic level generally required on an extension application considered alone. The parties made detailed submissions as to the proposed grounds of appeal. 55 I have formed the view that the proposed grounds of appeal do not have sufficient merit to justify a grant of leave. In the circumstances there is no purpose in the grant of any extension of time. I add that there was no compelling explanation as to the failure to raise the proposed grounds below, but I have not refused leave on that basis but rather on the overarching basis of the lack of merit of the proposed grounds. 56 Costs should follow the event. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.

Extension of time and leave to rely on new grounds - principles 5 Because of the extension application, some attention to the chronology is required. 6 On 30 November 2018 the decision was made to dismiss his application. On 15 December 2018 the applicant engaged new lawyers. On 24 December 2018 the applicant filed an application in the Federal Circuit Court to set aside what his lawyers understood to be an interlocutory decision made under r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth). 7 At a hearing on 27 February 2019, the primary judge advised that the more appropriate course was to apply to this Court in its appellate jurisdiction. The applicant then withdrew his application to set aside the interlocutory decision and on 28 February 2019 he filed the present application. 8 The proposed appeal process was therefore instituted 69 days late. 9 In considering whether to grant an extension of time for an appeal under r 36.05 of the Federal Court Rules 2011 (Cth), the Court will be guided by the following factors: the length and explanation for the delay; any prejudice that the respondent might suffer due to delay; and the prospects of the case succeeding if an extension were granted. There are many authorities to this effect: see in particular Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 186; (1984) 3 FCR 344 at 348-349 (Wilcox J); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ). The proposed appeal should have such prospects of success so as not to render the extension of time an exercise in futility: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9] (Lee, R D Nicholson and Finkelstein JJ). If an appeal has no prospect of success, an extension of time, even for only a short period, may be refused: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] (Murphy J). 10 The applicant says that the delay was caused by his lack of proficiency in English and his lack of understanding of the Australian legal system. The applicant says that he engaged a new legal representative who acted swiftly; that the subject matter is of grave importance to the applicant; and there is no prejudice to the respondent. 11 The Minister points to gaps in the chronology that are unexplained, but accepts that the delay has caused no real prejudice. The Minister submits that the decisive issue is that of the lack of any apparent merit. 12 The principles applicable to an application for leave to raise a new ground of appeal were comprehensively collected and addressed by Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 at [4]-[18]. Relevant matters that must be carefully weighed include whether the proposed ground has merit, whether there is prejudice to the respondent (noting that a layer of review is in effect removed where leave is granted), whether it is a matter of construction or law that could have been met by evidence below, whether there is an acceptable explanation for the ground not being run below, and whether it is in the interests of justice to grant leave. 13 The applicant gave no real explanation as to why the proposed grounds were not raised before the Federal Circuit Court. It appears to come down to the fact that he has secured new legal representation. 14 Whilst on an application for an extension of time the assessment of merit usually proceeds on a fairy impressionistic basis, in this case and in light of the application to rely on new grounds there has been substantive argument on behalf of both the applicant and the Minister. The applicant had the opportunity to but did not seek to rely on any materials in the Court Book that was before the Federal Circuit Court.

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (18)

Cited By (2)