MZZNU v Minister for Immigration and Border Protection

1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 This is an application for an extension of time in which to bring an appeal from a decision of Judge Jones made on 10 November 2016. The form of application also seeks leave to appeal, but the Minister concedes that there is no need for leave to appeal if the extension of time were to be granted because the applicant was entitled to appeal as a right if the appeal had been commenced in time. 2 The applicant filed an affidavit in support of his application dated 20 December 2016. He appeared in person but was assisted at the hearing by an interpreter in the Tamil language. The application was supported also by a proposed notice of appeal. The affidavit in support of the application for leave is short and states as follows: (1) I am the applicant of these proceedings. (2) My Federal Circuit Court file number is - and the number is given - and my Court pseudonym is MZZNU. (3) Attached in section marked annexure AB1 is the draft notice of appeal. In section marked annexure AB2 is the copy of the order and reasons for the judgment of Federal Circuit Court Judge Jones on 10 November 2016. (4) I appeal from the judgment of Federal Circuit Court made on 10 November by Federal Circuit Court Judge Jones grounds for extension of time. (5) I received the decision by post about one week after it was given. (6) Just after that, I also lost my phone and all my contact numbers for advocates in the community to help me read my decision and help me fill in forms to make an appeal. (7) This has caused a delay to get in contact and make an appointment with someone who will be free to help me fill in the forms for the Court appeal as I do not know English. (8) I apologise for the delay and respectfully ask the Court to grant me an extension of time. The affidavit contained no further material explaining why the loss of the phone caused any further delay in seeking to appeal, or indicating what other steps to commence the appeal in time or sooner than it was, could not have been taken by the applicant without the use of the phone. The explanation that is given by the applicant for not bringing the appeal within time, or sooner than it was sought by the present application, is unsatisfactory. There is no explanation about why the applicant was unable to make contact with people by physically going somewhere or by making other arrangements or inquiries. There was, indeed, no further information in the affidavit about any steps that he might have taken after the loss of the phone to obtain assistance from the community to help him in the appeal. There was also no further material explaining any inability or action or progress of the appellant's appeal between 20 December and the hearing of his application on 8 May. 3 The decision of the Federal Circuit Court was given on 10 November 2016, and the applicant had 21 days from that date to begin the appeal in this Court. He did not do so until 38 days later, namely, on 20 December 2016. The need to provide an adequate explanation for the delay is not something to be ignored. It has been said in numerous cases, such as the decision in Hunter Valley Developments Pty Ltd v. Cohen (1984) 3 FCR 344, that an unacceptable explanation for the delay is an important requirement in deciding whether to grant an extension. The explanation here is not adequate and the inadequacy of the explanation is sufficient to reject the application for an extension. However, the Minister does not rely primarily upon that in opposing the application. An application for an extension of time also requires consideration of whether there is prejudice to the respondent and the merits of a proposed appeal (see both the decision in Hunter Valley and also the decision in Singh v the Minister for Immigration [2015] FCA 905). In this case, the Minister does not claim that any prejudice will have been suffered if the extension were granted. The Minister does contend, however, that the extension should not be given because the proposed appeal is without foundation. 4 The appellant has three proposed grounds of appeal. The first is stated as follows: That there is a jurisdictional error in the Federal Circuit Court decision. There is nothing more in the proposed grounds of appeal, or in the affidavit, to identify a jurisdictional error. 5 The Minister accepts that the ground of appeal expressed in those terms should be read as if the word "jurisdictional" should be read as "appellable". I accept that, but also accept the submissions put by the Minister that there is nothing indicated by the reasons of the learned judge to indicate an appellable error. The case before the Federal Circuit Court had been essentially about whether the proceeding before the Tribunal had been adequately translated. Her Honour considered the relevant principles and analysed closely the material upon which the appellant sought to rely. There is no error evident in those reasons and none are identified in the grounds of application or in the affidavit or at the hearing. Her Honour accepted that there had been some confusion between the interpreter and the applicant but her Honour was satisfied that there had not been a failure in the task of translating and that such difficulties did not compromise the interpretive exercise that needed to be undertaken in the proceeding before the Tribunal. Her Honour was satisfied that the Tribunal understood the answer that the applicant was trying to convey. The decision of her Honour shows a careful consideration of the matters which had been raised by the applicant and shows no error in the way in which her Honour embarked upon a consideration of, and decided, the complaints that the applicant had been made. 6 The second proposed ground of appeal is as follows: The reasons provided by the second respondent to the first respondent in support of the second respondent's recommendation that the appellant was not a person to whom Australia had protection obligations were neither logical nor rational. The ground articulated in those words are not particularised in any greater detail, that is, there is nothing identified that is said to be illogical or irrational. In any event, it is not clear how a ground of lacking logicality or rationality is said to be a ground of appeal from the decision of the Federal Circuit Court. It, as a ground, appears to be directed to some other more generalised process that did not occur in this case rather than being linked to anything that occurred in this case or which was decided by her Honour in this matter. Ground 2 therefore has no merit to warrant the grant of an extension of time. 7 The third ground in the application is as follows: Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision have been completed. I have been informed by someone who reads English that the first respondent's lawyer had revealed the details of my wife's case, MZZNV, and it was included in documents that they gave me in a folder that included the list of authorities used in the Federal Circuit Court hearing. Our cases have been separate as my wife has instructed the Department of Immigration that she does not wish certain details of her asylum claim to be revealed to me. In fact, Victoria Legal Aid said they could not represent me because it would be a conflict of interest to represent both my wife and myself. Nothing in this proposed ground has sufficient merit to warrant the grant of an extension of time. The first sentence does not contain a ground of appeal but states, at best, that some grounds of appeal might be provided in the future. It was in a document created on 20 December and between then and the hearing date in May nothing has been added to the grounds nor has there been any indication that any legal representation will be available for the assistance that was hoped for or that further grounds might be obtained in any discernible period of time; nor is there any reason to think that there will be any further grounds of appeal. 8 The Minister conceded the separate complaint in the proposed third ground that the details of the applicant's wife's case ought not to have been included in the documents he had been given in a folder, but that fact and its concession, does not indicate a ground of appeal. The third proposed ground of appeal, therefore, also lacks any sufficient merit to warrant an extension of time. 9 Accordingly, the application for an extension of time will be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.