SZPZM v Minister for Immigration and Border Protection

1. The application for an extension of time filed on 9 February 2018 be dismissed.
2. The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

YATES J: 1 The applicant seeks an extension of time within which to appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 20 December 2017. A notice of appeal should have been filed by no later than 6 February 2018, having regard to the combined operation of rr 36.03(a)(i) and 1.61(5) of the Federal Court Rules 2011 (Cth). The applicant filed his application for an extension of time on 9 February 2018, three days after a notice of appeal should have been filed. 2 The Federal Circuit Court judgment dismissed the applicant's application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), which affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister) not to grant the applicant a Protection (Class XA) visa. The applicant's claims for protection are summarised in the primary judge's reasons for judgment at [4] - [5]. The detail of those claims need not be repeated here. The essence of his claims is that he would be persecuted by Maoists if he were to be returned to his home country of Nepal. 3 The grounds of his application for judicial review in the Federal Circuit Court were expressed as follows (errors in original): 1. I am not consent with the Tribunal Member's decision because the decision involved an error of law. 2. The Tribunal Member based the finding of lack of credibility was based on a clearly erroneous fact. 3. The Tribunal Member took irrelevant considerations into account and in its decision by ignoring or overlooking relevant material for me. 4. The Tribunal Member breached its obligations to provide procedural fairness and natural justice to me. 4 The primary judge dealt with these grounds as follows: 11. At the hearing before me the applicant, who is not legally represented, requested that I consider his case properly and give the applicant justice. After the applicant made this submission, each of the grounds stated in the applicant's application to this Court was interpreted to the applicant and I asked the applicant whether he wished to say anything in relation to each of the grounds. As will appear shortly, the applicant either made no submission or no substantive submission after each ground was interpreted to him. 12. The first ground reveals no jurisdictional error because it does not identify the error of law the applicant claims the Tribunal made. The only submission the applicant made was to request that I look into the legal error. That submission takes the first ground no further because it does not identify the legal error the applicant claims the Tribunal made. 13. The second ground also reveals no jurisdictional error because it does not identify the fact the Tribunal found or assumed to exist which the applicant claims was erroneous or the grounds on which it is so claimed. After the second ground was interpreted to the applicant and I asked him whether he wished to say anything about the ground, the applicant requested I give him justice. I asked the applicant whether he was in a position to tell me what fact he claimed was erroneous, but the applicant said he could not say. 14. The applicant made no submissions in relation to the third ground. That ground, too, reveals no jurisdictional error because it does not identify the irrelevant considerations the applicant claims the Tribunal took into account or the material the applicant claims the Tribunal overlooked. 15. As to the fourth ground the applicant said he wanted me to consider his case properly and give him justice. This ground, as stated, discloses no jurisdictional error because it does not give any particulars of the respects in which the Tribunal denied the applicant procedural fairness. 5 The applicant also raised the validity of two certificates which had been issued pursuant to s 438 of the Migration Act 1958 (Cth) (the Act) in respect of four documents. The Minister accepted in the Federal Circuit Court that the certificates had not been validly issued. Redacted versions of the documents covered by the certificates were tendered, but the applicant was shown the documents in unredacted form. 6 The primary judge considered the significance of the documents to the Tribunal's decision. His Honour reasoned that even though the Tribunal had not disclosed the existence of the certificates to the applicant, it did not follow that the applicant had been denied procedural fairness. I do not consider that to be an accurate statement of the legal position. 7 Procedural fairness required the Tribunal to disclose the fact that the Tribunal had been notified that s 438 of the Act applied to the documents and information it had been provided under cover of the certificates. Non-disclosure of that fact constituted a breach of the Tribunal's obligation of procedural fairness, but for such a breach to constitute a jurisdictional error, it must give rise to a practical injustice, meaning that the applicant was denied the opportunity to make submissions on a matter material to the Tribunal's decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [38]. 8 In the present case, the primary judge found that two of the documents covered by the certificates had no apparent relevance to the applicant's claims before the Tribunal. The remaining two documents (which were reports as to the authenticity of passports relied on by the applicant) were not documents which his Honour was prepared to infer the Tribunal had had regard to in coming to its decision, in light of the Tribunal's findings at [10] of its Decision Record which, with necessary redactions, were: 10. The applicant claims that his true identity is [X] who was born in Nepal on 23 October 1971. The applicant entered Australia on 1 December 2009 travelling on Nepali passport in the name of [Y] born on 24 May 1976. The applicant provided a passport in the name [X] to the Department in respect of the original Protection visa application made by the applicant on 17 June 2010. The decision of the delegate with respect to that application noted that the passport provided had been forensically examined and found to be a legitimate passport. 9 I also refer to [32] of the Decision Record where the Tribunal expressed its satisfaction that the applicant was a citizen of Nepal and that his claims would be "assessed against Nepal". I note further that the primary judge found that the information in the forensic reports was not treated by the Tribunal as adverse to the applicant's claims. 10 The application for an extension of time is supported by an affidavit made by the applicant on 6 February 2018. 11 In that affidavit, the applicant deposes that he was unable to file a notice of appeal within the required time because of his "financial problems". Those problems are not identified and no explanation is provided as to how those problems affected his ability to file a notice of appeal within time. In his affidavit the applicant deposes that he is "not satisfied with the judgement [sic] of the Federal Circuit Court judge". His draft notice of appeal accompanying the affidavit sets out the following proposed grounds of appeal: 1. I am not satisfied with the judgment because the learned Federal Circuit Judge erred by simply agreeing with the respondent's arguments and failed to find that the Tribunal Member denied me procedural fairness, the legal error which was made by the Tribunal Member in its purported decision. 2. It is argued that the Tribunal Member erred by overlooking my claims on the issue of my suffering from the Maoists in concluding that I had no political interest or opinion that is unreasonable. 3. I contend that my case has been affected by the judgment in Singh-v-Minister for Immigration and Border Protection. 12 On 26 February 2018, the applicant was ordered to file and serve a written outline of submissions in support of his application and in support of any appeal were the Court to grant an extension of time, so as to enable the Court to assess the application and to see whether there would be any utility in granting an extension of time. The applicant has not filed any written submissions. However, at the hearing of the application today, I invited him to address me orally in support of his application for an extension of time. 13 The applicant directed my attention to the fact that certificates had been issued under s 438 of the Act, and although he could not point to any error in the primary judge's treatment of those certificates as they affected the Tribunal's reasons, he invited me to consider for myself whether the primary judge's findings and conclusions were attended by error. 14 Rule 36.05 of the Federal Court Rules confers a broad discretion. In determining whether to grant an extension of time, the factors to be taken into account normally include the extent of the delay, the explanation for it, any prejudice that might be suffered by the respondent by reason of the delay, and the merits of the proposed appeal. 15 The Minister does not contend that the delay in the present case is substantial, or that any specific prejudice would be suffered should an extension of time be granted. The Minister does contend, however, that the applicant's explanation for the delay is inadequate, and that any appeal based on the grounds stated in the draft notice of appeal would not have reasonable prospects of success. 16 The applicant's explanation for the delay is unconvincing and not adequate, but perhaps more importantly in the circumstances of the present case, the grounds of appeal on which he seeks to rely, should an extension of time be granted, have no reasonable prospects of success. 17 In respect of the first proposed ground, the applicant's application for judicial review advanced four grounds. They were, in form, bald assertions lacking any meaningful particularisation. The applicant advanced no substantive submissions in support of them. The primary judge considered each ground but rejected them for the reasons I have quoted above. The primary judge did not "simply agree" with the Minister's arguments as proposed Ground 1 contends. His Honour rejected the four grounds on a reasoned basis. No error is demonstrated on the part of the primary judge in that regard. 18 The allegation that the primary judge failed to find that the Tribunal denied him procedural fairness is related to the third proposed ground of appeal. As I have explained, the primary judge did not accurately state the position at law. But the critical question is whether the Tribunal committed a jurisdictional error. I have already referred to the fact that the primary judge found that two of the documents covered by the certificates had no apparent relevance to the applicant's claims, and that to the extent that the certificates covered the reports as to the authenticity of the passports, the Tribunal had no regard to them. 19 I would add that it is clear that in rejecting the applicant's claims on credibility grounds, the Tribunal had no regard to the reports. None of the Tribunal's credibility findings related to the forensic analysis of the passports on which the applicant relied. Whilst I do not think that the primary judge expressed the legal position correctly when dealing with the significance of the certificates issued under s 438 of the Act, his Honour's subsequent analysis and findings show that no jurisdictional error was committed by the Tribunal. I understand that to be the substance of the primary judge's finding. It follows that this aspect of Ground 1 of the proposed appeal and proposed Ground 3 have no reasonable prospects of success. 20 The second proposed ground of appeal is incompetent because it alleges error on the part of the Tribunal. It is not directed to whether there was error in the Federal Circuit Court judgment. As the Minister submits, it appears that the applicant is seeking to raise a new ground of review which was not before the primary judge. The applicant would need leave to raise that ground. I am not persuaded that leave should be granted. It is without merit. I accept the Minister's submission that the Tribunal plainly considered the applicant's claims to fear harm from Maoists, but disbelieved him, as the primary judge identified. 21 I accept the Minister's submission that the application to extend time should be dismissed with costs. Orders will be made accordingly. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.