MZZZZ v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 The applicant is a Sri Lankan citizen. He came here by boat on 29 May 2012. Thereafter, he was interviewed by officers of what was then known as the Department of Immigration and Citizenship. In September 2012, the then Minister exercised the power conferred by s 46A(2) of the Migration Act 1958 (Cth) (the Act) to allow the applicant to apply under that Act for that class of visa known as a Protection (Class XA) visa. This he did with the assistance of a lawyer on 14 September 2012. 2 There were a number of different aspects or integers of the claim which the applicant made for a protection visa namely, the death of his father at the hands of the Sri Lankan Army, his Tamil ethnicity, membership of a social group constituted by young Tamil men from the north or east in Sri Lanka, membership of a particular social group comprised of failed asylum seekers who departed Sri Lanka illegally and imputed political opinion in support of the Liberation Tigers of Tamil Eelam (LTTE) and Tamil Makkal Viduthalai Pulikal (TMVP). 3 A delegate of the first respondent, now known as the Minister for Immigration and Border Protection (Minister) refused the applicant's claim for a protection visa on 28 February 2013. The applicant then sought the review on the merits of the Minister's delegate's decision by the Refugee Review Tribunal (Tribunal). After a hearing in May 2013, in which the applicant was represented by a lawyer, the Tribunal decided on 13 January 2014 to affirm the Minister's delegate's decision not to grant the applicant a protection visa. 4 Between then and now, as a result of legislative change, the Tribunal has been subsumed into the Administrative Appeals Tribunal. As a result, it is as a matter of form necessary to substitute for the Tribunal, as the second respondent, though correctly named at the time the proceedings were instituted, the Administrative Appeals Tribunal, in light of that legislative change. I shall so order. The Tribunal has quite properly adopted a submitting appearance. 5 After the adverse decision by the Tribunal, the applicant sought the judicial review of the Tribunal's decision by the Federal Circuit Court of Australia (Federal Circuit Court). On 4 December 2014, that Court dismissed the application as amended for judicial review. The applicant did not file a notice of appeal in respect of the Federal Circuit Court's judgment within the 21-day period allowed by r 36.03 of the Federal Court Rules 2011 (Cth). The application, therefore, is for an extension of time within which to file the proposed notice of appeal. 6 The extension application was filed on 30 April 2015, a little over four months following the expiration of the 21-day period allowed under r 36.03. Though the case concerned the granting of an extension of time in respect of an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth), rather than an extension of time within which to file a notice of appeal, I consider that the factors canvassed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments v Cohen) are also pertinent in respect of the applicant's extension application. 7 The Minister did not point to any particular prejudice beyond the cost of meeting an appeal in the event that an extension were to be granted. But mere absence of prejudice beyond this is not in itself a basis for the granting of an extension of time. As was in my view correctly recognised on behalf of the Minister, there are two substantive issues to be considered in this case in relation to the granting of an extension, and those two issues interplay, one with the other. 8 They are: (1) is there an acceptable explanation for the delay; and (2) are the merits of the proposed appeal such as to warrant the granting of an extension. 9 Those two considerations interplay in the sense that, for example, even were an explanation not terribly compelling, if the merits of a proposed appeal were overwhelming, an extension would nonetheless readily be given. 10 The applicant has provided an explanation. His explanation is that, after the Federal Circuit Court's judgment, he decided, in lieu of appealing, initially to write to the Minister and ask that the Minister exercise his discretion under s 417 of the Act. That provision allows the Minister, if he thinks it is in the public interest so to do, to substitute for a decision of the Tribunal another decision, being one more favourable to an applicant whether or not the Tribunal had power to make that other decision. 11 In Hunter Valley Developments v Cohen, in the course of canvassing factors in a non-exhaustive way relevant to the granting of an extension, Wilcox J, at pages 348 to 349, made reference to - in the context of the provision of an acceptable explanation - whether an applicant "by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision". In other words, it is relevant to look at whether an applicant has "rested on his rights". Uninstructed by authority, I may well have taken the view that, by asking the Minister to exercise his discretion under section 417, the applicant had demonstrated to the Minister that he was not content with an outcome which denied him a protection visa. 12 There are though cases which suggest, albeit it seems to me without regard to cases mentioned by Wilcox J in Hunter Valley Developments v Cohen, that the adoption of the process of seeking the Minister to substitute a decision does not provide an acceptable explanation for delay: see, in this regard, Vu v Minister for Immigration and Citizenship (2008) 101 ALR 211 at [29] per Jessup J, Gyles and Besanko JJ agreeing; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [16] per Farrell J; and the High Court obiter remarks referred to her Honour, and MZZKF v Minister for Immigration and Border Protection [2014] FCA 1362 at [9] per Davies J. 13 This makes the prospective merits of the proposed appeal highly relevant. These are set out in a readily comprehensible way in the proposed notice of appeal. Ground 2 puts in a number of different ways an alleged denial of procedural fairness. The difficulty about ground 2 is that the information which the applicant asserts was not put, and ought to have been put, runs contrary to the way in which s 424A of the Migration Act has been construed: see, for example, SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415. 14 In other words, information which is generic or which was provided by the applicant during the course of the hearing of his visa application is not information which needs later to be put to an applicant by the Tribunal. Insofar as ground 2 also contains, in ground 2(a), reference to an alleged failure to consider a heightened risk by reference to his being a returned asylum seeker, the difficulty about that proposed ground is that that subject was expressly considered by the Tribunal in the Tribunal's reasons. And so, too, was an alleged association between the applicant and a Tamil by the name of Dileep. 15 As to proposed appeal ground one, there are two aspects to this proposed ground. The first alleges a failure to deal with an integer of his claim. The difficulty about this proposed appeal ground is that, as was recognised by the Federal Circuit Court, the Tribunal has comprehensively dealt with each of the integers. The outcome was the result of a combination of credibility assessment and consideration of country information, measured against the integers of the claim for a protection visa. The outcome was a conclusion reasonably open to the Tribunal. 16 The other aspect of ground 1 concerns an alleged failure properly to consider the complementary protection criterion found in s 36(2)(AA) of the Migration Act. An insurmountable difficulty, in my view, with this proposed ground is that the Tribunal's reasons reveal that it expressly considered this subject and addressed whether there was a real risk that the applicant would suffer significant harm if returned to Sri Lanka. 17 It follows then that, even if I were to regard the explanation given as acceptable, the appeal, measured by reference to its proposed grounds, does not enjoy sufficient prospect of success to warrant the granting of an extension of time. I therefore dismiss the application for an extension. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.