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[2008] FCA 1093
Federal Court of Australia
2008-07-24
Reeves J
Original judgment source is linked above.
INTRODUCTION 1 On its face, this is an application for leave to appeal, but in reality it is an application for leave to file an appeal out of time pursuant to O 52 r 15(2) of the Federal Court Rules. The decision the applicant wishes to appeal is that of Federal Magistrate Barnes, which was delivered on 19 March 2008. In an application of this kind, the applicant needs to show that there are 'special reasons' why leave should be granted. There is also a general requirement for the Court to consider what prospects of success the applicant has in the appeal.
FACTUAL BACKGROUND 2 The applicant is a citizen of Bangladesh who arrived in Australia on 7 February 2005. He applied for a protection visa some seven months later, on 29 September 2005, on the basis of his alleged political persecution in Bangladesh following unionist activities he undertook for the Saramik League which is a wing of a Bangladeshi union called the Awami League. The application was refused by a delegate of the first respondent on 14 December 2005 and the applicant subsequently applied to the Refugee Review Tribunal for a review of that decision. 3 After it conducted a hearing, a differently constituted Tribunal affirmed the decision of the delegate, in a decision handed down on 6 July 2006 ('the previous Tribunal'). However, on 31 August 2006, the decision of the previous Tribunal was quashed by the Federal Magistrates Court and the applicant's application was remitted to the Tribunal to be reconsidered according to law. 4 The applicant attended a hearing before a newly constituted Tribunal ('the Tribunal') on 5 December 2006 and gave evidence. He also tendered some letters of support from officials of the Saramik League. Following the hearing, the applicant provided written submissions and further letters of support and photographs following the hearing. 5 The applicant claimed that he had become a target of political parties in Bangladesh ('BNP' and 'Jamaat-e Islami') and employer associations and that he had been assaulted in 1996. According to the appellant he was eventually framed with murder when a fellow activist died and he had to leave Bangladesh in June 1998, although he returned for ten weeks in 2003 because his father was dying. He found employment with an official in the United Arab Emirates and came to Australia in that capacity - on his own passport - in 2005. He alleged that his employer abandoned him in Australia and that he fears his visa would now be cancelled so that he would be forced to return to Bangladesh, where he would be further persecuted and not protected by the courts.
THE TRIBUNAL'S DECISION 6 The 'Decision Record' of the Tribunal records that it listened to the tapes of the hearing conducted by the previous Tribunal and considered the evidence given by the applicant before it. The Tribunal adopted the factual summary of the previous Tribunal. The Decision Record shows that the Tribunal put its concerns to the applicant regarding: his exit from Bangladesh, the renewal of his passport following the alleged murder charge, the fact that he left Bangladesh rather than relocate or seek help from the Saramik or the Awami League; and the lack of any reference to false murder charges in the letters of support he provided. The Tribunal was also concerned about the late submission of the evidence of the applicant's involvement with the Awami League in Australia and about the applicant's lack of knowledge about industrial relations in Bangladesh. 7 The Tribunal accepted that the applicant was a member of the Saramik League and that he was threatened and assaulted but it found that 'on the basis of the applicant's own descriptions of his political activities, the limited geographical scope of his activities, and his unsatisfactory knowledge…he was engaged in low level localised activities' and did not have a high political profile. Further, the Tribunal set out five separate reasons detailing why it remained dissatisfied that the applicant was falsely charged with murder or that he is (or was) of interest to the Bangladeshi authorities. 8 The Tribunal noted that it was not necessary in view of its findings (above) to consider relocation but said '[n]evertheless, as it was put to him at the hearing, if he wants to avoid his former local opponents it is reasonable for him to relocate to a different part of Bangladesh'. The Tribunal accordingly affirmed the delegate's decision.
THE FEDERAL MAGISTRATE'S DECISION 9 In his application filed in the Federal Magistrates Court on 29 January 2007 the applicant alleged: 1. The Tribunal denied the applicant natural justice in determining the appeal in that the Tribunal was biased, or, in the alternative there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision. 2. The Refugee Review Tribunal (RRT) in its decision, handed down on 9 January 2007, made error of law and failed to exercise the proper procedure in relation to made decision on the review of the applicant's protection visa application. 3. The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it. 4. The second respondent ("the Tribunal") denied the applicant natural justice and procedural fairness pursuant to s.420 and s.425 of the Migration Act 1958. 5. Following the hearing, pursuant to s.424A of the Migration Act, the Tribunal did not put anything writing to the applicant to respond. 6. The applicant was deprived of the natural justice and procedural fairness. 7. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong question in deciding that the applicant's claim. The Tribunal failed to maintain their procedural fairness. 8. The tribunal was biased as it did not consider the new claim with the neutral point of view as such the applicant was deprived of the natural justice. 10 Before the Federal Magistrate, the applicant's only submission was in terms of a request for more time to make submissions and, when this was refused, he 'claimed, without elaboration, that there were problems at home in Bangladesh'. The Federal Magistrate did not have before her a transcript of the hearing before the Tribunal or the previous Tribunal. Her Honour determined that the applicant's first and third grounds of review made similar allegations of bias and that neither ground was made out on the material before her, referring to Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17and Re Refugee Tribunal: Ex parte H (2001) 179 ALR 425; [2001] HCA 28. 11 Her Honour dismissed the second ground of review on the basis that it was unparticularised, and similarly, her Honour noted that the applicant had not anywhere identified the information he claimed to be subject to the obligations of s 424A(1) of the Migration Act 1958 (Cth)('the Act'), so that grounds five and six were also deficient. On her Honour's assessment of all the material 'no failure to comply with s 424A had been established'. 12 In relation to the fourth ground of review, her Honour held that '... there is no discernable breach of s 420 of the Act, let alone conduct that establishes a jurisdictional error, whether by virtue of a failure to comply with s.425 or otherwise'. That finding meant that ground seven, which alleged a denial of procedural fairness amounting to jurisdictional error, was also dismissed. 13 There was nothing before the Federal Magistrate to indicate that the Tribunal failed to have regard to some part of the applicant's claims or that it failed in any manner as alleged in grounds seven or eight. Her Honour noted that the Tribunal had considered the applicant's involvement in Awami League activities outside Bangladesh, his letters of support and any potential for harm by his employer. Finally, her Honour noted that the applicant's affidavit filed with his application raised similar allegations of denial of natural justice and a failure by the Tribunal to carry out its duty and held that "those generally expressed grounds are not made out". 14 Having found that no jurisdictional error had been established, Federal Magistrate Barnes dismissed the application for review.
GROUNDS AND CONTENTIONS 15 On 10 April 2008, the applicant filed an affidavit annexing a draft notice of appeal and seeking leave to appeal one day outside the appeal period. In his affidavit, the applicant stated: "I do not have a lawyer to prepare my application or to advise me about the last date of application. I thought that my application will be submitted on or before 28 days". 16 The draft notice of appeal sets out the following grounds: 1. The Second Respondent made a jurisdictional error in deciding the real fear of persecution of the Appellant and the Federal Magistrate made an error of law by not finding this. 2. The Federal Magistrate made an error of law by not finding that the Refugee made jurisdictional error by not considering the integer of the appellant's claim. Particularly, a false case was filed against the appellant prior to his leaving the country of origin. 3. The Refugee Review Tribunal made a jurisdictional error not to considering the appellant's activities in Australia as a leading activist, which is subject to persecution upon returning to Bangladesh. The Federal Magistrate made an error of law by not finding this. 4. His Honour erred by considering the Second Respondent away from not to considering the relevant document in regards to the prevailing situation in Bangladesh. 17 The applicant also filed written submissions on the day of the hearing of this application, which set out the applicant's personal background and previous proceedings and made some detailed complaints about the Tribunal's reasoning in relation to his claims and the Federal Magistrate's treatment of them, including the following (at [12] to [14] of the reasons inclusive): 12. The Tribunal accepted that the applicant was threatened and assaulted on a number of occasions in 1996 by the BNP and Jamat-e-Islami opponents; No reasons was given by the RRT why this did not mean that there was a evidence give rise to real chance of persecution in future by the same people or by same groups as those who has previously threatened and assaulted him. Even if the applicant only engaged in politics at same level as in the past, he had been threatened and assaulted when was engaged in these activities. The Court erred in finding an error committed by the Tribunal. 13. The Tribunal made an implicit finding that it was the practice of the authorities in Bangladesh to notify all Embassies through out World of the charges which people in Bangladesh faced. Indeed the Tribunal went so far as to in effect require (CB 305.10) to the applicant produce evidence that the Bangladeshi Embassy in UAE had been notified that he had been charged with murder. However there is no evidence that Bangladeshi embassy in UAE would have been notified. Therefore there was no evidence to justify the Tribunal reasoning and findings at 305.7 to 306.1, the Court below made an error in deciding this issue. 14. The Court below outlined that "in so far as ground eight asserted that the Tribunal failed to consider his involvement in the Awami League in Australia and his letter in support, Barnes FM Found that the Tribunal had considered this in some detail" not full, it rise a confusion which need to consider by the Honourable Court. 18 At the hearing before me the applicant appeared unrepresented. He confirmed, with the assistance of an interpreter, that he was seeking leave to file the appeal out of time. Mr Reilly appeared on behalf of the first respondent. Mr Reilly opposed leave being granted essentially on the basis that the appeal had insufficient prospects of success. In the written submissions that he had filed earlier, he submitted that the applicant's first and fourth grounds must fail because they lack particulars and therefore are meaningless and, the second and third grounds must fail because the Tribunal's decision confirms that the Tribunal did consider the claims of the applicant in some detail (and rejected them). 19 In response to the applicant's written outline of submissions (described above) Mr Reilly submitted that each of the conclusions that are attacked by the applicant was open on the materials before the Tribunal and is fully explained in its Decision Record as follows: a) In relation to [12], the Tribunal explained at page 23 of its Decision Record why it concluded that the assaults the applicant had suffered in 1996 were not grounds for him to fear persecution if he were to return to Bangladesh in 2007; b) In relation to [13], the Tribunal explained at page 22 of its Decision Record how it came to the conclusion that the renewal of the applicant's passport in the United Arab Emirates in 2002 was evidence that the Bangladeshi authorities were not adversely interested in the applicant; c) In relation to [14], these submissions are fully dealt with in the Tribunal's decision and properly analysed by the Federal Magistrate at [43] of her Honour's decision.
CONSIDERATION 20 In this case, the applicant is only one day out of time in lodging his appeal. In his affidavit in support of this application he explains this delay as arising from a combination of his poor understanding of English, his lack of legal representation and his erroneous belief he had 28 days to appeal, instead of 21 days. In Jess v Scott (1986) 12 FCR 187 ('Jess') at 195 the Full Court of this Court held that: the expression 'special reasons' "is intended to distinguish the case from the usual course; and "take the case out of the ordinary": see also WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 ('WAAD')at [8]. In my opinion, the combination of circumstances deposed to by the applicant (above) sets this matter apart from the usual course, or takes it out of the ordinary, such that there are 'special reasons' for the purposes of O 52 r 15(2). 21 However, there are a number of decisions of this Court, including the Full Court, that require me to consider the applicant's prospects of successfully prosecuting his appeal, before exercising my discretion to grant leave to file the appeal out of time: see Brehoi v Minister for Immigration & Multicultural Affairs [1999] FCA 772at [12] per Whitlam, Moore and Katz JJ; Tydeman v Deputy Registrar of Child Support Agency [1999] FCA 936 at [5]per Sackville J; Atkinson v Commissioner of Taxation [2000] FCAFC 1621 at [12] per Hill J and at [14] per Dowsett J, and see Sackville J in the first instance [2000] FCA 998 at [3]; Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [12] per Mansfield J; Howard v Australian Electoral Commission [2000] FCA 1767 at [7] per Branson J; W105/99A v Minister for Immigration and Multicultural Affairs [2001] FCA 1786 at [13] per RD Nicholson J;and WACF v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCA 1385 at [30] per Carr J and WAAD (above) at [9]. 22 The questions which then arise are: how rigorous should that assessment be; what standard should apply to it; and how closely should the applicant's prospects of success be examined? The appropriate standard has been expressed in different ways and in different circumstances. In Jess the Full Court does not seem to have mentioned any requirement to assess the applicant's prospects of success in the appeal. This is probably explained by the view the Court expressed early in its reasons that: "there is no suggestion that the appeal is sought to be maintained mala fide or upon slight or foolish grounds" (at page 3). However, their Honours did emphasise the need for flexibility to accommodate the range of situations that may arise when they said: … the 'special reasons' relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. 23 While in WAAD the Full Court (differently constituted) stated at [9] that: "an extension of time in which to file an appeal will not be granted without a consideration of the putative appellant's prospects of successfully prosecuting his appeal", the Court did not provide any clear statement as to the standard to be applied to that consideration. However, two paragraphs earlier at [7] the Court did observe: "The discretion to extend leave is given with the purpose of enabling the Court to do justice between the parties … So, for example, where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted." Furthermore, when the Court came to describe the applicant's prospects of success in that case, it said they were of "sufficient strength" to justify leave being granted. 24 In Jess the Full Court referred twice to the Victorian Full Court decision of Hughes v National Trustee Executors and Agency Co of Australasia Ltd [1978] VR 257 at 262 and 264. In Hughes the Full Court observed (at 264) that the consideration of the applicant's prospects of success in the appeal was required in balancing the injustice caused to each party by granting or refusing the leave application. The Full Court seemed to put the standard quite high for the respondent opposing the application for leave and, conversely, quite low for the applicant, by stating that: "[f]or it would be unjust to the respondent to put him to the trouble and expense of an appeal if the judgment sought to be attached [sic] is plainly right …". 25 I interpolate that the competing injustice or prejudice caused to the parties has been stated as an important consideration in a number of decisions including: WAAD (see [23] above), SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 ('SZKJV') at [12] per Jacobson J and Jackamarra v Krakouer (1998) 195 CLR 516 ('Jackamarra') at [66.4] per Kirby J. Further, another aspect that has some bearing on the issue is whether the respondent's substantive rights are put at risk by the grant of leave: see Jackamarra at [7] per Brennan CJ and McHugh J. 26 In WACF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1385, Justice Carr observed that: I have previously, in cases where an applicant has only been a few days out of time and had not received a copy of the reasons in good time, declined to require him to show a reasonable prospect of success or a good arguable case before being granted an extension of time in which to lodge a notice of appeal - see WABD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 299 and WABX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 300. I did so in reliance upon the observations of Ackner LJ (with Robert Goff LJ and Browne-Wilkinson LJ concurring) in Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517 at 521, a case cited with approval by the Full Court in Jess v Scott at 192. 27 In the decision of Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517 at 521, referred to by Justice Carr (above), the English Court of Appeal observed on this issue: "…having drawn attention to the procedure which used to exist, we expressed the opinion that, in cases where the delay was very short and there was an acceptable excuse for the delay, as a general rule the appellant should not be deprived of his right of appeal and so no question of the merits of the appeal will arise. We wish to emphasise that the discretion which fell to be exercised is unfettered, and should be exercised flexibly with regard to the facts of the particular case. No doubt in some cases it may be material to have regard to the merits of the appeal, because it may be wrong, and indeed may be an unkindness to the appellant himself, to extend this time for appealing after he has allowed the time to elapse, to enable him to pursue a hopeless appeal. 28 In the recent decision of SZKJV (above) Justice Jacobson said (at [16]) that: A critical factor in the exercise of the discretion is a consideration of the merits of the substantive application. This informs the exercise of the discretion and the nature of what amount to "special reasons" in any particular case. In considering the merits of the appeal, an applicant will not ordinarily have to demonstrate that there are reasonable prospects of success. The authorities to which Mr Bozic referred in his written submissions are to the effect that the Court will generally only exercise its discretion against granting leave if the appeal is so devoid of merit that it would be futile to extend time. This was said by Brennan CJ and McHugh J in Jackamarra v Krakouer (1998) 195 CLR 516 at [7]. 29 Earlier in the decision of Chief Justice Brennan and Justice McHugh in Jackamarra (at [3]) their Honours referred to Lord Denning MR's decision in R v Secretary of State for the Home Department: ex parte MEHTA (1975) 2 ALL ER 1084 at 1088 where he contrasted cases that were "strong on the merits and which ought to be heard" with those that were "a flimsy case and weak on the merits". In the joint dissenting judgment of Justices Gummow and Hayne in Jackamarra (at [34]) their Honours said, after referring to the tests for summary dismissal listed by Chief Justice Barwick in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 including: "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument", their Honours said: We do not think it useful to fasten upon one verbal formula in preference to all others as a description of the necessary degree of satisfaction. What must be shown is that it is clear that the appeal will fail and in that sense is not "arguable" or not "fairly arguable". In his judgment in Jackamarra Justice Kirby said at [66.4]: A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. 30 Taking all these decisions into account, particularly the High Court Decision of Jackamarra, I consider the standard that should be applied in an application of this kind to the assessment of the applicant's prospects of success in the appeal, is similar to that to be applied in an application for summary dismissal. That is, unless the appeal is shown to have no reasonable prospects in the sense that it is devoid of merits or will clearly fail, or is hopeless or unarguable, leave should be granted. 31 There remains the question: how closely should the applicant's prospects of success on the appeal be examined? The answer to that question was provided in Jackamarra. There the High Court said the consideration of an application of this kind should not go into much detail on the merits and can only assess the merits in a fairly rough and ready way: see [9] per Brennan CJ and McHugh J and [66.4] per Kirby J. 32 As I have already pointed out, in this case, the applicant is only one day out of time in lodging his appeal. No question of prejudice has been raised by the first respondent and this is not a situation where the first respondent's substantive rights will be affected by the grant of leave. On the other hand, the applicant's prejudice is obvious and potentially very significant if he loses a right of appeal that may eventually lead to him establishing an entitlement to a protection visa in this country. I have already found that the applicant has demonstrated circumstances that amount to 'special reasons' for the purposes of O 52 r 15(2). From my review of the Tribunal's decision and the Federal Magistrate's treatment of it, based on a rough and ready assessment, I have concluded that the applicant's prospects in this appeal are not such that it will clearly fail, or is devoid of merit, or is hopeless or unarguable, with respect to at least some of the matters raised in the applicant's outline of submissions (see [17] above). I do not consider it appropriate, at this stage of the proceedings to describe the applicant's prospects other than in these very general terms. 33 For these reasons, I propose to grant leave to the applicant to file his notice of appeal out of time. I certify that the preceding thirty three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.
Associate: Dated: 24 July 2008 Counsel for the Applicant: In person Solicitor for the First Respondent: Sparke Helmore Counsel for the First Respondent: Mr T Reilly
SZJDS
Minister for Immigration and Citizenship
[2000] FCAFC 1621
(2001) 205 CLR 507
(2001) 179 ALR 425
(1986) 12 FCR 187
(1998) 195 CLR 516
(1964) 112 CLR 125