DKL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2023-11-23|Before: Markovic J

The application for an extension of time filed on 23 February 2021 is dismissed.
The applicant is to pay the first respondent's costs, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC J: 1 This is an application made under r 36.05 of the Federal Court Rules 2011 (Cth) for an extension of time in which to file a notice of appeal from orders made by the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Div 2)) on 3 August 2020 dismissing an application for judicial review of a decision by the second respondent (Authority) dated 22 August 2019: see DKL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2128. The Authority had affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV).

The Authority's decision 6 The Authority summarised the applicant's claims, namely that: since the age of about 18 he had been a member of Jamaat-e-Islami (JI); he attended their meetings and sometimes after demonstrations would be pursued by people he presumed were from the Bangladesh Nationalist Party (BNP) or Awami League but was able to run away and wasn't harmed; since leaving Bangladesh he has continued to speak to JI members there and has associated with JI members in Australia; and he worked as a security guard in a brothel in Dhaka and fears returning to Bangladesh as his family will harm him for his work in an immoral business. 7 In support of the applicant's claims to be a JI member or otherwise politically active with JI, the applicant provided to the Department of Home Affairs (as the Minister's department was then known) several largely similar English translations of an undated letter from the JI Amir in his local area which stated, among other things, that the applicant "was an active member". However, the Authority placed no weight on the Amir's letter noting among other things that it was generic in nature, provided no details about what the applicant did as an active JI member and when he was involved and seemed at odds with the applicant's own evidence at the SHEV interview that he was not very active in the party: Authority's reasons at [15]. 8 The Authority did not accept that the applicant was a JI member or otherwise politically active with JI in Bangladesh. It found that: the applicant's claims about his involvement with JI had changed over time in a number of significant respects; the applicant was unable to recall in detail what was discussed at meetings; his evidence about his age at the time he began to participate in JI meetings and other activities was inconsistent; and some aspects of his account of his involvement appeared to be inconsistent with country information concerning JI and its members: reasons at [15]. 9 The Authority also did not accept that the applicant had maintained communications with JI members in Bangladesh in the 11 years he had been absent from there or that he lived or associated with JI members in Australia as he claimed: reasons at [17]. 10 The Authority was not satisfied that there was a real chance that the applicant would suffer harm from his brothers, family or anyone else as a result of having previously worked as a guard in a brothel over a decade ago. The Authority accepted that the applicant had for several months in 2007 worked as a guard in a brothel. However, although the Authority accepted that the applicant may have little or no ongoing relationship with his brothers, it did not accept that he was estranged from his family. The Authority was willing to accept that there was a real chance that the applicant may continue to have no ongoing contact with several of his brothers, however it was not satisfied that alienation from some of his siblings amounted to serious harm: reasons at [14]. 11 The Authority also considered whether the applicant was at risk of harm as an asylum seeker returning to Bangladesh. However, as the Authority had not accepted that the applicant was a member of the JI in Bangladesh, it concluded that he did not have a profile which would be of potential interest to Bangladeshi authorities. Accordingly, the Authority was not satisfied that there was a real chance the applicant would suffer any harm because he sought asylum overseas before returning to Bangladesh: reasons at [18]-[20]. 12 The Authority concluded that the applicant did not meet the requirements of s 36(2)(a) of the Act: reasons at [22]. The Authority also found that there was no real risk that the applicant would suffer significant harm and therefore that he did not meet s 36(2)(aa) of the Act: reasons at [27].

the Federal Circuit Court PROCEEDING 13 On 5 September 2019 the applicant commenced a proceeding in the Federal Circuit Court seeking judicial review of the Authority's decision. The applicant raised four grounds of review in his application which are recorded at [22] of DKL19. They are (as written and omitting particulars): (1) The IAA fell into error that its failed to ask the correct assessment whether the applicant is likely to suffer harm in his home country due to JI membership Bangladesh. Particulars … (2) The IAA is erred and its failed to assess convention nexus/complementary/temporary protection criteria whether a period of exile from home would amount of "significant harm" (s36(2A]) or serious harm (s91R[2]) and section 5 of the Migration Act t 1958 (he Act) and thereby committed jurisdictional. Particulars … (3) The IAA made finding that the applicant will not face any problem previously while he was in Bangladesh and will not face any harm if he returns to his country which is illogical and thereby fell into jurisdictional error. Particulars … (4) The claim of particular social group/ political opinion arises in the material. The IAA in erred when its failed to consider the particular social group. Particulars … 14 The applicant filed submissions in support of his application which, as explained by the primary judge at [19] of DKL19, purported to raise a new fifth ground although the applicant did not file an amended application including that fifth ground. Nonetheless, the primary judge addressed each of the matters included in the amended application and the applicant's submissions. 15 The primary judge rejected each of the grounds of review. however, given that the proposed ground of appeal now raised by the applicant is a new ground, not raised before the primary judge, it is not necessary to set out his Honour's reasons for doing so.

The application for an extension of time 16 Rule 36.03 of the Rules provides that an appellant must file a notice of appeal within 28 days after the date on which the judgment appealed from was pronounced or the order was made. The applicant filed his application for an extension of time on 23 February 2021, some 175 days after the orders were made by the Federal Circuit Court dismissing his application for judicial review. 17 In considering whether to make an order extending the time to file a notice of appeal the Court will ordinarily take into account the length of and explanation for the delay, any prejudice to the respondent as a result of the delay and the merits or prospects of the proposed grounds of appeal if an extension was granted: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9; CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 318 at [14]-[18]. An extension of time will not be granted if an appeal has no reasonable prospect of success: see CKT20 at [17]. 18 Here, although the delay is considerable, the Minister accepts that he would not suffer any prejudice if an extension was granted. That leaves for consideration the questions of delay and merits of the proposed ground of appeal.

Delay 19 In his affidavit filed with his application for an extension of time the applicant says that at the time he "was ill and not able to lodge an appeal within the statutory time frame". The applicant's assertion that he was ill is unsupported by any objective evidence. For example, there is no evidence of the nature of the illness from which he was suffering, its effect and for how long he was unable to undertake tasks as a result of it. The applicant's explanation is unsatisfactory and does not explain why he took the time he did to file his application. 20 In his submissions the Minister acknowledges that the written reasons for judgment were not available to the applicant within the time prescribed for filing a notice of appeal and indeed were not available until the applicant had filed his application for an extension of time. While that is less than ideal it does not provide an explanation for the delay. As the Minister submits, even if it did, the critical issue is whether there is merit in the proposed ground of appeal so as to warrant the grant of an extension of time.

Merit of the proposed ground of appeal 21 In the applicant's draft notice of appeal annexed to his affidavit he raises one ground of appeal (as written): The honourable Court below has denied procedural fairness pursuant to AAMI171 v Minister for Immigration, Citizenship and Migration Services and Anor. Particulars: The appellant was self represented with the assistance of an interpreter. The honourable Court below has denied natural justice as the at the hearing by having explained the process to be undertaken on the appeal, and the function of this Court, the Court invited the Minister's lawyer to address the Court first, so that the Minister's position could be interpreted for the appellant, and he could respond. Both the appellant and the Minister's lawyer agreed to this process. The hearing proceeded with the helpful assistance of the Minister's lawyer, in something of an iterative way, with the appellant being given a chance to respond to matters as the Minister's lawyer raised them, and having had them interpreted to him. 22 As framed the ground is not entirely clear. However, given the reference to AAM17 v Minister for Immigration, Citizenship and Migration Services [2019] FCA 1951, it seems that the applicant contends that the procedure adopted by the primary judge in giving ex tempore reasons gives rise to an appealable error. That is because in AAM17 Mortimer J found that the Federal Circuit Court's oral reasons were not interpreted to the appellant at the time they were delivered and, although he had the orders, he had no explanation of how or why the court made those orders and did not receive any explanation until after receipt of the formal written reasons. Her Honour held that those circumstances constituted an unfair procedure and a denial of procedural fairness and set aside the primary judge's orders. 23 The Minister contends that in this case, in contrast to the facts before the Court in AAM17, the ex tempore reasons delivered by the primary judge were translated at the time they were given, although he has not filed any evidence to prove that contention. Putting that to one side there is a compelling reason why the applicant's proposed ground of appeal cannot succeed. That is because in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329 (AAM17 High Court) the decision in AAM17 was overturned. At [22] of AAM17 High Court Steward J (with whom Kiefel CJ, Keane, Gordon and Edelman agreed) in effect rejected the contention that the procedure adopted by the primary judge there in giving ex tempore reasons gives rise to an appealable error. His Honour relevantly said: Underlying the Federal Court's decision, and the first respondent's submissions in this Court, was a conception of procedural fairness that exceeds the range of matters with which that concept is concerned. In this case, as the Minister rightly submitted, the final instance of any right or entitlement of either party arising from the primary judge's obligation to afford procedural fairness occurred at the time the parties made their concluding submissions. Thereafter, the trial having finished, procedural fairness had no role to play in respect of the matters the subject of the primary judge's decision. (Footnotes omitted.) 24 The applicant's proposed ground of appeal is without merit.

Conclusion 25 Given the length of the delay in filing the application for an extension of time, the lack of explanation for that delay and, critically, the lack of merit in the applicant's proposed ground of appeal, I would not grant the extension of time sought by the applicant. The application for extension of time should be dismissed. As the applicant has been unsuccessful, he should pay the Minister's costs of that application, as agreed or taxed. 26 I will make orders accordingly. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.

Migration Act 1958(Cth)s 36(2)

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