DRG16 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-02-19|Before: Lee J

The application for an extension of time to appeal be dismissed.
The applicant pay the first respondent's costs on a lump sum basis assessed in the amount of $4,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

a background 1 On 28 September 2017, the applicant filed an application pursuant to FCR 36.05 for an extension of time within which to file a notice of appeal against a decision of the Federal Circuit Court. The application named as respondents the first respondent (Minister) and the Immigration Assessment Authority (IAA). The application was accompanied by an affidavit sworn by the applicant on 25 September 2017. 2 The evidence of the applicant, which was relevantly unchallenged and which I accept, was that he was represented by both solicitors and Counsel before the Federal Circuit Court and that his solicitor informed him that his application to that Court was dismissed on 4 September 2017. In fact, the order dismissing the application was made on 31 August 2017 and, accordingly, the applicant was labouring under a misapprehension as to the time limit for the filing of a notice of appeal. Annexed to the applicant's affidavit is a draft notice of appeal from the Federal Circuit Court which sets out four proposed grounds of appeal from the judgment of the Federal Circuit Court (primary judgment). 3 The principles relevant to the exercise of discretion to grant an extension of the time within which to file a notice of appeal are well established. Mr Hughes, who appeared on behalf of the Minister, accepted, correctly in my view, that an acceptable explanation for delay had been provided and that the length of delay was inconsequential. The only matter of prejudice to which the Minister pointed was the fact that the proposed notice of appeal identifies grounds which differ from the way in which the case was conducted below. Accordingly, in the event that leave were granted to advance an appeal on this basis and such an appeal was upheld, there would be prejudice occasioned to the Minister by reason of the loss of any appeal as of right from my determination (the only avenue, of course, being an application for special leave to appeal to the High Court). 4 As I explained to the applicant at the commencement of his submissions-in-chief, it seemed to me that the underlying merits of the substantive appeal, if leave were granted, was the consideration that was determinative in relation to whether or not an extension of time should be granted. As I recently explained in Cross v Harbour City Ferries Pty Ltd [2017] FCA 1577 at [23], when considering proposed grounds of appeal, they should be considered at a "reasonably impressionistic level" and the Court should guard against transmogrification of the hearing of the application for an extension of time into a full-blown hearing of the substantive appeal. Having said that, there is a certain degree of artificiality in doing justice to an unrepresented litigant (in seeking to understand inexpertly drafted proposed grounds of appeal) and determining the application for leave to appeal at a level of generality which does not involve descent into the underlying merits. 5 Despite the issue of prejudice pointed to by the Minister, if I formed the view that the proposed appeal grounds disclosed some arguable case, in my opinion, the appropriate exercise of discretion in this case would be to grant an extension of time. 6 This is not to ignore the Minister's argument that the Court's appellate jurisdiction is exercised for the correction of error and that it is necessary to demonstrate error on the part of the primary judge before this Court will intervene. Indeed, these principles are also well established: see Zaburoni v Minister for Immigration and Border Protection [2017] FCAFC 205 at [52] per Griffiths, Moshinsky and Bromwich JJ. The difficulty for the applicant is, of course, that the argument advanced before the primary judge when he was legally represented was materially different from the argument now proposed to be advanced on appeal. 7 The relevant background, prior to the matter coming before the Federal Circuit Court, is unnecessary to detail (as it is set out comprehensively in the primary judgment commencing at [4]). In short, the applicant is a citizen of Sri Lanka who arrived in Australia in 2012 and, in 2016, applied for a protection visa. In the statement accompanying his application, the applicant claimed to fear harm because of his Tamil ethnicity and because of the existence of political enemies. These details are recorded in the IAA's decision at [10]-[13], [15]-[25] and [33]-[40]. In any event, in September 2016, a delegate of the Minister refused the application and, in accordance with the fast track review provisions of the Migration Act 1958 (Cth) (Act), the delegate's decision was automatically referred to the IAA for review. In November 2016, the IAA decided to affirm the delegate's decision. 8 At this juncture, it is important to note that the attack below was focused on the contention that the applicant was denied procedural fairness by the delegate because he was prevented from referring to a notebook to refresh his memory during an interview with the delegate. Counsel for the applicant argued that as a consequence, the delegate's decision was a nullity, and that the only decision open to the IAA on review was to remit the matter to the delegate. As the primary judge observed at [2]: At the heart of this argument, was the submission that the review process engaged in by the IAA was truncated and so did not operate to "cure" the defect in the delegate's decision. (Uncorrected) 9 In a comprehensive judgment, the primary judge determined that there was no denial of procedural fairness involved in the delegate's decision and, in any event, even if there had been, that would not have affected the IAA's authority to affirm the decision. There is no need to detail the primary judge's reasons, as this argument is not pressed in the proposed appeal the subject of the application before me.

b consideration 10 As would by now be evident, in the Court below the applicant did not seek to invite a wholesale review of the IAA's decision, but advanced the contention that the alleged failures by the delegate had the effect that the IAA's decision was a nullity. Although this contention is apparently not pressed in this Court, it is difficult to understand why the primary judge's resolution of what he described as the "[f]irst issue" at [38]-[61] of the primary judgment (that is, that the delegate's decision was affected by a procedural unfairness) discloses any error and, in particular, how it is suggested that the applicant was denied a reasonable opportunity to present his case. 11 In any event, as indicated at [2] above, there are now four grounds proposed to be advanced on appeal, which may be summarised as follows: (a) The IAA failed to consider relevant facts (Ground 1). (b) There was an excess of power (Ground 2). (c) The IAA's reasons misconstrued the applicant's claims, and also gave reasons that were unreasonable, unacceptable and misleading (Ground 3). (d) The respondents fell into jurisdictional error by making fact finding errors in coming to the decision to reject the applicant's claims (Ground 4). 12 It is convenient to deal with each of these four grounds.

B.1 Ground 1 13 The IAA was not satisfied that the applicant faced a real risk of persecution now, or in the reasonably foreseeable future. As the Minister submitted: (a) the IAA did not accept that the Tamil Makkal Viduthalai Pulikal (TMVP) continued to have any interest in the applicant or that he faced any risk from them. While the IAA accepted that the applicant had once been detained by members of the TMVP, he had not had any problems with them in the period between 2008 and his departure in 2012: at [13]; (b) the IAA did not believe the applicant's evidence about alleged attacks or his role in subsequent protests. While the IAA accepted that the applicant may have protested, it was not satisfied that this would have caused the authorities to target the applicant as he claimed: at [15]-[25]; (c) the IAA found that there was no reason why the Criminal Investigation Division (CID) (presumably of the Sri Lankan police) would be interested in the applicant. It found that the applicant had fabricated his claim that the CID had come looking for him in 2015. It found that the applicant would not face harm in Sri Lanka because of his Tamil ethnicity or imputed political opinion in favour of the Liberation Tigers of Tamil Eelam (LTTE): at [29]-[34]; (d) the IAA found that the applicant would not face persecution having left Sri Lanka illegally: at [45]-[51]; nor would he face significant harm for this reason (or indeed any other reason): at [57]-[58]. 14 During the course of oral submissions, I asked the applicant to say anything he wished to say to me in support of this ground of appeal (along with other aspects of his application). The applicant did not identify with any particularity the facts which he alleges were not considered by the IAA. The applicant also complained that he could not provide evidence to "clear those credibility issues" addressed by the IAA as this was "impossible", and further complained that he was treated unfairly during the interview with the delegate. As has already been explained, the ground as to procedural fairness argued by Counsel below is not now advanced. 15 I accept the Minister's submission that the applicant has not identified those facts which he alleges the IAA failed to consider. The IAA's findings were open to it and it reasoned from available facts. For this reason, it appears to me that there is no arguable merit in proposed Ground 1.

B.2 Ground 2 16 Under this proposed ground, the argument as to excess of power seems to be connected to a contention that the respondents demonstrated that they had the power and knowledge to reject the applicant's original claims when it was in fact plain from the decision record that it was "obvious that the respondents had very little knowledge of the persecution faced by the Tamils in Sri Lanka". 17 To the extent that I understand this proposed ground of appeal, it does seem to invite an impermissible merits review of the findings of the IAA. Not only were the findings made by the IAA plainly within its power to make, but they were findings of a type necessary to be made, given the nature of the review process as mandated by the statutory scheme.

B.3 Grounds 3 and 4 18 These proposed grounds were as follows: 3. The respondents misconstrued and misinterpreted the claims to suit their reasons in rejecting the appellant's claims and thus made a jurisdictional error. 4. The respondents made fact-finding errors in coming to the decision in rejecting the appellant's claims and thus made a jurisdictional error. 19 The former ground was articulated in the proposed notice of appeal as arising from the "respondent's (sic) comments in the refusal decision [being] based on contradicting all the appellant's claims by quoting irrelevant and unfair findings without any basis". The latter was said in the document to arise on the basis that the "findings mentioned in the refusal decision were not made legally but based on hearsay evidence and through presumptions". 20 In my opinion, these grounds again seem to be an invitation to revisit the findings of the IAA in a way which fundamentally misapprehends the nature of the task with which this Court is charged. No reasons were advanced by the applicant in the course of oral submissions as to why these grounds were made out, nor did my reading of the IAA's reasons bear out the applicant's criticisms. Further, and allied to the principle identified at [6] above, the applicant did not identify how it was alleged that the primary judge fell into error. Again, I accept the Minister's submission that no basis for the proposed grounds is identified.

c conclusion and orders 21 For these reasons, the proposed grounds of appeal are devoid of merit and it would be futile to grant the extension of time sought by the applicant. In these circumstances, I dismiss the application and order that the applicant pay the first respondent's costs on a lump sum basis assessed in the amount of $4,000. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

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