Application to this Court
12 The decision of her Honour was delivered on 15 July 2011. The applicants were required, pursuant to r 36.03 of the Federal Court Rules, to file any appeal from the decision by 5 August 2011. They did not do so.
13 On 29 August 2011 the first applicant filed an application for an extension of time for leave to appeal. Annexed to that application was a draft notice of appeal in which the first applicant specified the following grounds of appeal:
1. The Hon. FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant's claims and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of a Statutory Obligation.
2. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.
3. The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.
(Reproduced as in original.)
14 In support of that application the first applicant filed an affidavit in which he deposed as follows:
1. I am an Indian Citizen by birth and came to Australia and applied for protection visa under the determination of Refugee status in Australia.
2. The Delegate of the minister for Immigration and Citizenship refused to grant my protection visa. I applied for review in the Refuge Review Tribunal, but the member of the Tribunal affirmed the delegate decision.
3. I filed for Judicial review application before the Federal Magistrate. Honourable FM dismissed my application on 15 July 2011. I was not represented by any solicitor. I had no idea that my application was dismissed on the day of final hearing. I received the order last week. The order sent to me after 21 days.
4. I require extension of time and serve notice of appeal against the Federal Magistrate order.
(Reproduced as in original.)
15 In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Wilcox J explained principles relevant to the exercise of the power of the Court to extend time in which to make an application under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). These principles are of general application. In summary, relevant factors for consideration by the Court include:
whether the applicant has provided an acceptable explanation for the delay in lodging the application;
whether the respondent would suffer prejudice in light of the delay should an extension of time to lodge the application be granted; and
the merits of the substantial application.
16 At the hearing before me it was clear from submissions made by the first applicant that the he had, erroneously, believed that the orders of her Honour made on 15 July 2011 only took effect once reasons for judgment had been published and he had received the formal orders in the mail. This belief arose from the fact that her Honour had, apparently, requested that the first applicant provide his contact details in order for the Court to forward him formal orders and reasons for judgment. In the circumstances of this case, this is a satisfactory explanation for the delay of the applicants in filing the notice of appeal against her Honour's decision.
17 No issue as to prejudice in respect of the delay in filing was taken by the Minister at the hearing before me.
18 However, Mr Temby for the Minister pressed the Minister's submissions that the draft grounds of appeal as presented by the applicants were of no merit. In summary, the Minister contended:
In relation to the first draft ground of appeal, the reasons given by her Honour satisfactorily answer the claim of the applicants that her Honour failed to consider that the Tribunal acted in a manifestly unreasonable way, and ignored the persecution and harm to the applicants in terms of s 91R of the Act. In reality, the Tribunal simply did not accept that the applicants' claims of persecution were credible. Mr Temby directed me in particular to paragraphs 6, 11,12, 21, 25 and 26 of her Honour's judgment.
The second draft ground of appeal was unparticularised and of no substance. In relation to her Honour's judgment Mr Temby directed me specifically to paragraph 10.
In relation to the third draft ground of appeal, the Federal Magistrate at paragraphs 19, 24 and 31 clearly considered whether the applicants had been denied procedural fairness by the Tribunal, and found that there was nothing to support such a claim. Further, the Minister contended that this ground of appeal invited a merits review of the applicants' case, which is impermissible under the Act.
19 At the hearing before me, I invited the first applicant to make submissions as to the merits of the proposed appeal. The first applicant emphasised that his primary goal was to receive another opportunity to present the applicants' case to the Tribunal, as he had been very nervous at the first Tribunal hearing. I asked the first applicant if he had informed the Tribunal of his nervousness at the time of that hearing, however his response was in the negative.
20 Unfortunately, a mere desire to improve one's performance before the Tribunal at a second hearing does not warrant an order quashing an existing decision of the Tribunal.
21 In my view the draft grounds of appeal have no reasonable prospect of success, and have no merit. No appealable error is apparent in respect of her Honour's judgment. The appropriate order is to refuse the application for an extension of time in which to file an appeal from the decision of her Honour.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.