MZALP v Minister for Immigration and Border Protection

The application for extension of time for leave to appeal 20 On 1 February 2016 the applicant filed an application for extension of time for leave to appeal supported by his affidavit sworn the same day and attaching a draft Notice of Appeal. 21 Pursuant to r 35.13(a) of the Rules, any application for leave to appeal from the interlocutory judgment on 17 December 2015 was required to be filed within 14 days. No application was filed within that period and the application for an extension of time for leave to appeal was 32 days late.

Relevant principles in an application for extension of time 22 As I said in MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [23]-[24] the relevant considerations in an application for extension of time are well established: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Wilcox J) at 348-9; Singh v Minister for Immigration and Border Protection [2015] FCA 483 (Kenny J) at [20]. Those factors are not exhaustive and the outcome of an application to extend time depends on the particular circumstances of the case: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38] (Griffiths J with Edmonds J agreeing). The merits of the proposed appeal will often be central: Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59 at [14] (Jessup J with Edmonds and Griffiths JJ agreeing.) 23 In the circumstances of the present case the salient considerations are: (a) whether there is acceptable explanation for the delay; (b) whether there is prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension; and (c) whether the application for leave to appeal has reasonable prospects.

Is there an acceptable explanation for the delay? 24 The application for an extension of time and the applicant's affidavit in support are difficult to understand and do not clearly set out why the applicant failed to file the application within time. 25 On one reading the applicant's materials indicate that he did not lodge the application within time because he mistakenly considered the date on which the orders of the Federal Circuit Court were entered (12 January 2016) was the commencement of the time period for filing an application for leave to appeal. 26 Then, before me, the applicant submitted that he was advised by his migration agent to await receipt of sealed orders and reasons for judgment before consideration could be given to an appeal. He submitted that he lodged the application seeking leave to appeal within four to five days of receiving the orders. However, he did not mention this in his affidavit and there is no evidence to support this submission. 27 Even if I were to accept the truth of the applicant's assertions, there is little force in his submission. First, if his migration agent provided such advice it was erroneous. The applicant was present in court on 17 December 2015 when the orders were made and the time ran from that date. Second, the applicant previously missed the time limit when seeking reinstatement of his application before the Federal Circuit Court. He should have been careful to avoid doing so again. Third, even if it is the case that the applicant understood that time ran from 12 January 2016, he did not meet the 14 day time limit. 28 In my view the procedural history shows that the applicant has repeatedly been dilatory in advancing his claim and it is likely that his late lodgement of the application for leave to appeal is just another example. However, it is appropriate to take into account the applicant's limited English language skills, that he said he could not afford legal representation, and that for him it would have been difficult to ascertain the 14 day time limit for an appeal from an interlocutory judgement. On balance, while I do not consider the applicant established a satisfactory reason for the delay in making the application, this factor does not carry great weight in my decision.

Is the Minister prejudiced by the delay? 29 The Minister did not submit that there was any prejudice to his interests by reason of the delay. Given that the delay in lodging the application for leave to appeal was only 32 days I am satisfied there was no real prejudice.

Does the application for leave to appeal have reasonable prospects of success? 30 The draft Notice of Appeal is difficult to comprehend but, doing the best I can, it alleges: (a) the applicant and his former girlfriend were of different faiths. Exceptional circumstances beyond the applicant's control mean that he cannot return to India where he faces threats to his life. He cannot go to India, has no option to go to another country, and accordingly he seeks protection in Australia; (b) the applicant was unwell on the date fixed for the Tribunal hearing and no hearing was conducted; (c) the applicant applied to the Federal Circuit Court but the application was dismissed due to his non-attendance on the date fixed for hearing. The applicant lodged an application to reinstate the application and, due to lack of legal knowledge, he did not put on any evidence. He requested the Court to accept oral evidence in relation to his claim for protection; (d) in his application to reinstate the Federal Circuit Court proceeding he was ordered to submit any additional grounds a review and provide complete particulars, but he did not do so due to lack of legal knowledge. However, he attended the hearing and made oral submissions; (e) the present situation is outside the applicant's control and he lodged the application for leave to appeal to the Federal Court within time; (f) a new argument has come to light which demonstrates manifest error by the Tribunal and he wishes to be heard on that; and (g) the applicant is ready to provide valid reasons why his progress in further education is unsatisfactory and to show his eligibility for a protection visa. 31 In part the grounds of appeal repeat claims that were addressed by the Tribunal on the materials before it and were found not to engage Australia's protection obligations under the Act. I can see no jurisdictional error by the Tribunal in regard to those claims or appealable error in the reasons for judgment of the limited primary judge. It is trite but necessary to observe that the Court has no jurisdiction to conduct a merits review of the Tribunal's decision. 32 The main focus of the applicant's case is that he was not accorded procedural fairness because the Tribunal made the decision in his absence and without hearing further from him. In essence, he submitted that he was denied an opportunity to put on evidence substantiating his claims. 33 There is, however, little merit in the applicant's contention. Section 426A(1A) of the Act provides that where an applicant does not appear before the Tribunal on the day that the applicant is scheduled to appear, the Tribunal may "make a decision on the review without taking any further action to allow or enable the applicant to appear before it." 34 In my view the primary judge was correct in holding that the Tribunal was entitled to decide the application on the material before it when the applicant failed to attend the scheduled Tribunal hearing on 11 December 2014. I consider the applicant was given a proper opportunity to be heard and the Tribunal's decision was not affected by jurisdictional error. 35 In relation to the alleged "new argument", it became clear in oral submissions that this was not an application to advance a new ground of appeal but a reiteration of the submission that the applicant should be allowed to put on new evidence to substantiate his claims about the alleged events in India. In my view this is not a case in which that should be permitted. 36 I say this, first, because the applicant was given an opportunity to give evidence and present arguments before the delegate, and then before the Tribunal, and he did not take that up. Based on the materials before it the Tribunal found the applicant's claims were "vague and unsubstantiated". That conclusion was plainly open to it when the applicant did not provide any dates or even approximate times of the events, did not provide the names of the protagonists, claimed that his girlfriend committed suicide but did not say when or provide any proof in that regard, claimed that his parents committed suicide but did not say when or whether that related to his claims or provide any proof in that regard, and claimed that his relationship with his girlfriend prompted two riots but gave no details of when they occurred or his involvement in them. 37 Second, the evidence which the applicant seeks to put forward goes to the merits of his claims and the Court has no jurisdiction to conduct a merits review of the Tribunal decision. 38 I respectfully agree with the learned primary judge that the applicant has no arguable case and, in my view, there is no jurisdictional error in the Tribunal deciding the applicant's claim without hearing further from him.

Conclusion 39 On the basis that the application for leave to appeal does not have reasonable prospects of success I have dismissed the application for an extension of time for leave to appeal and ordered the applicant to pay the respondent's costs of the application. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.