MZZIV v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT (Delivered Ex Tempore and Revised) 1 This is an application for an extension of time in which to bring an appeal from a decision of the Federal Circuit Court. Orders were made by the Federal Circuit Court on 8 August 2013. The proceeding before the Federal Circuit Court concerned the review of a decision of the Refugee Review Tribunal made on 5 March 2013. In that decision, the Tribunal affirmed a decision made on 5 August 2011 by a delegate of the Minister for Immigration and Citizenship to refuse a protection visa to the applicant. 2 Rule 36.03 of the Federal Court Rules 2011 (Cth) requires a Notice of Appeal to be filed and served within 21 days after the date when the orders or judgment were pronounced. Accordingly, the Notice of Appeal in this matter should have been filed by 29 August 2013. This application for an extension of time was not filed until 9 September 2013, and the application itself is therefore 11 days out of time. 3 In considering whether to extend the time in which a Notice of Appeal may be filed, the Court takes into account three principal matters: any explanation for the delay, any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted, and the prospects of success of the appeal if an extension were to be granted. These considerations were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and have been applied consistently in this Court. 4 Authorities may be found to support the general contention that matters such as ignorance of time limits, the fact of being unrepresented, or ignorance about the court in which any appeal should be filed are insufficient explanations for any delay. In my opinion, it is unhelpful to consider these matters at such a general level. 5 The discretion to extend time is reposed in the Court to ensure that the interests of the administration of justice are served, and parties whose substantive appeals should be heard and determined in accordance with law are able to secure that outcome. Identifying which parties fall into that category requires analysis of the factual circumstances in each case. Sometimes, matters such as lack of legal representation, little or no proficiency in English, and little or no understanding of the Australian legal system may combine to suggest a delay is explicable. Other factors such as the length of the delay, the steps taken by an applicant during the running of the time period, and the time at which the applicant received a copy of the Court's orders and reasons may be significant. The party's personal circumstances may need to be considered. The importance of the subject matter of the proceeding to the party requesting an extension of time may also be relevant. The more there is at stake, the more confident the Court may need to be before it refuses an extension of time, especially if the delay is not significant. The manner in which a discretion such as this should be exercised cannot be answered by general statements about certain attributes or the circumstances of a party being insufficient. 6 Even in circumstances where the Court is persuaded on the basis of the kinds of factors referred to that an extension of time may be appropriate, the prospects of success of any appeal may be determinative of the manner in which the Court's discretion should be exercised. That is because it is not in the interests of the administration of justice to utilise the resources of the Court and of other parties where there is no realistic prospect the appeal will succeed if an extension is granted. Such a process also exposes an applicant to the risk of significantly greater legal costs if the appeal is unsuccessful and the Court makes the usual orders as to costs. 7 An application for an extension of time provides an opportunity for the Court to consider the merits of arguments on an appeal, perhaps more promptly than might occur in an appeal as of right. The prospects of success must be considered, paying due attention to the fact the arguments have not been fully developed, and the Court does not possess all the evidence it might on an appeal. Even where there is explicable delay, it is likely the Court's determination will best serve a balance between fairness to an applicant and the appropriate use of the Court's and other parties' resources if leave is refused in respect of matters which enjoy no realistic prospects of success. 8 I turn, now, to the explanation for delay in this proceeding. 9 The applicant gave oral evidence, at the Court's suggestion, given the affidavit relied upon by him was incomplete. He confirmed that he was in Court when the Federal Circuit Court judge delivered her orders and reasons ex tempore, dismissing the application. I note, also, that the Minister's counsel confirmed the applicant had an interpreter present to assist him in the Federal Circuit Court, and I understand it was the same interpreter who is present today. The applicant stated the delay was because he was seeking information about the current situation in India. He confirmed that he received a copy of the Court's orders and reasons in the post on 29 August 2013. 10 He said he wanted to appeal so he could extend his visa to stay in Australia as the situation in India was not good for him to return. I find, in those circumstances, the applicant was aware of the Federal Circuit Court orders on the day they were made, and was aware that his application had been unsuccessful. There is no evidence, however, whether he knew of or was advised about his rights of appeal and that they were time limited. It is not unreasonable, in my opinion, for a losing party, whether represented or unrepresented, to await receipt of orders and reasons for judgment in writing before appealing. An appeal exposes a party to further costs and it is a serious step. 11 Indeed, one might infer from the applicant's brief evidence in this Court that he was considering whether it was worth appealing, or better to return to India. Given the applicant's evidence that, on 29 August 2013, he received in the post the Court's orders and reasons, I find that he took action to lodge an appeal within 11 days of receipt of those orders and reasons in the post. In those circumstances, I find he acted promptly, even though, strictly, he was outside the time limit because of the ex tempore delivery of orders and reasons. I consider those circumstances could justify an extension of time, provided the appeal itself has some prospects of success. I turn, now, to that issue. 12 The proposed Notice of Appeal records two arguments: 1. The Mr.Whelan failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 2. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT. 13 Neither of those grounds has any substance. The reasons of the Federal Circuit Court judge disclosed that her Honour considered the Tribunal's reasons and did so conscious of the fact the applicant was unrepresented. The first ground refers to s 91R of the Migration Act 1958 (Cth), but is, in fact, contrary to the findings of the Tribunal. The Tribunal made four relevant findings: 1. That the applicant feared persecution by reason of his religion and his membership of two social groups: informers and prosperous merchants or businessmen; 2. The Tribunal found the harm involved systematic and discriminatory conduct for the purposes of s 91R; 3. The Tribunal found the applicant's fears of harm were well founded if he returned to Gujarat, and the State could not adequately protect him; and 4. The matter on which the Tribunal found against the applicant concerned whether the applicant's fear was well founded as against the whole of India, and not just Gujarat. 14 The Tribunal found it was both reasonable and safe for the applicant to relocate to another part of India. This was the reason the Tribunal found the applicant was not owed protection, either under the Refugees' Convention or by way of complementary protection. The Federal Circuit Court pointed this out at [24] of its reasons, and noted the Tribunal had made the applicant aware of this issue during the hearing. 15 The Refugee Review Tribunal decision is a very detailed, careful consideration of the applicant's claims and the evidence and material relevant to them. The applicant was afforded procedural fairness by the Tribunal and his case was, on the reasons of the Tribunal, given close and serious consideration. In considering the Tribunal's decision, I have taken into account the fact the applicant is unrepresented and does not have adequate spoken or written English. For those reasons, he is unable to present, understandably, a case on judicial review about the Tribunal's decision. If the Court considered there were serious arguments the Tribunal's decision was made in excess of jurisdiction, it would raise those concerns with the Minister's representatives. However, the Court has no such concerns, and there is also no apparent error in the approach taken by the Federal Circuit Court judge. 16 Accordingly, although the applicant has a reasonable explanation for the delay in lodging an application to appeal, the appeal itself has no prospects of success on the evidence before the Court, even with a more general consideration of the Tribunal's reasons for decision than the grounds in the proposed Notice of Appeal. There is prejudice both to the Minister as a respondent, and to the administration of justice generally if, with limited resources and many litigants awaiting trial, a court were to grant an extension of time where the appeal has no prospects of success. 17 The application for an extension of time in which to lodge an appeal is therefore refused. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.