SZSYM v Minister for Immigration and Border Protection

3. Consideration of the application for an extension of time

3.1 Is leave to extend time required? 13 In the absence of an order extending time, any appeal to the Federal Court of Australia from a decision of the Federal Circuit Court is generally required to be filed within 21 days under r 36.03 of the Federal Court Rules 2011 (Cth) (formerly O 52 r 15(1)). That rule provides that: "An appellant must file a notice of appeal: (a) within 21 days after: (i) the date on which the judgment appealed from was pronounced or the order was made; or (ii) the date on which leave to appeal was granted; or (b) on or before a date fixed for that purpose by the court appealed from." 14 The primary judge gave an ex tempore judgment on 16 October 2013 dismissing the application for judicial review. The applicant applied to this Court on 21 November 2013 for an extension of time within which to institute an appeal pursuant to r 36.05 of the Federal Court Rules 2011 (Cth). 15 While the judgment of the Court below was pronounced on 16 October 2013, the sealed orders were not entered until 12 November 2013. In the circumstances, Senior Counsel for the Minister addressed the question of whether leave was required and pointed to r 16.02 of the Federal Circuit Court Rules 2001 (Cth) which provides that a judgment or order of that Court takes effect on the day when it is given or made, unless the Court otherwise orders. 16 There being no evidence of any contrary order, the Minister rightly submitted that the judgment below took effect on 16 October 2013 and that time within which to appeal commenced to run from that date for the purposes of r 36.03 of the Federal Court Rules. It follows that the period within which an appeal could be instituted as of right expired on 6 November 2013 and an extension of time within which to appeal is required.

3.2 The principles by which the application is assessed 17 The principles which guide the Court's discretion in deciding whether or not to grant an extension of time are well established, namely, "…the length of the delay, the explanation for the delay, the presence or absence of prejudice to the respondent and the merits of the proposed appeal": Quan v Minister for Immigration and Border Protection [2013] FCA 1239 at [22] (Farrell J); see also Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-9 (Wilcox J).

3.3 The applicant's delay in initiating proceedings 18 For the reasons earlier stated, the application is 15 days out of time. The applicant's draft notice of appeal is accompanied by an affidavit made by him on 21 November 2013. While it is not apparent whether the affidavit was sworn or affirmed, the Minister properly did not take any point in this regard. 19 In his affidavit at [2] and [3], the applicant explains the reasons for his delay as follows: "[2] I was waiting for the decision of the Court below but I have not received this decision until yesterday. [3] By the time I have received the decision the prescribed time has been passed." 20 The applicant further explained at the hearing that he had not been aware that time started when the decision was pronounced by the Court below on 16 October 2013. Rather, he explained that it was his understanding that time commenced to run from the date on which he received a copy of the decision and orders on 20 November 2013, after the period within which to appeal had in fact expired. No issue was taken with the applicant's explanation which I accept. 21 In the result, as the Minister properly conceded, the question of whether an extension of time should be granted turns upon whether the proposed appeal has sufficient prospects of success. The delay was not substantial, a reasonable explanation has been given for that dela, and the respondent appropriately conceded that it will not suffer any real prejudice as a result of that delay.

3.4 Does the application enjoy sufficient prospects of success?

3.4.1 Overview 22 The proposed grounds of appeal are identical to those contained in the applicant's amended application before the Court below. As was rightly pointed out by Senior Counsel for the Minister, the grounds identified in the draft notice of appeal are misconceived in that they seek to challenge only the decision of the Tribunal and do not engage with the reasons of the Court below. However, having regard to the applicant's circumstances and lack of legal representation, I consider (and the Minister accepted) that, fairly read, the draft notice of appeal should be taken as challenging the decision of the Court below and requesting this Court to consider whether the primary judge's decision wrongly failed to hold that the Tribunal erred in the respects for which the applicant contends. 23 I have considered the proposed grounds of appeal on that basis and have reached the view that there is no merit in any of the proposed grounds of appeal.

3.4.2 Proposed grounds 1 and 2, draft notice of appeal 24 The Court below considered grounds 1 and 2 together. By ground 1, the applicant claims that the Tribunal failed to assess his claim of persecution on the basis of his involvement with the BNP in Bangladesh and rejected his claims that he would suffer serious harm by reason of his political opinion notwithstanding its finding that he was a supporter of the BNP. Ground 2 alleges that the Tribunal "failed to assess my persecution on the basis of political circumstances exist in Bangladesh" given that the country evidence showed the existence of political violence in Bangladesh and that BNP leaders and activists faced serious harm from the AL and its government agency. 25 In my view, there is no error in the primary judge's reasons for dismissing those grounds. The Tribunal's reasons demonstrate that it did in fact assess the applicant's claim that he had a well-founded fear of persecution by reason of his political activities, as it was required in law to do, and made findings rejecting those claims on the evidence before it which were open in law. Specifically, it was open to the Tribunal to reject the applicant's claims as to the nature of his involvement with the BNP and affiliated associations, aside from his claim to be a supporter of the BNP, on the basis of its adverse findings as to credit and to find on the country evidence that, as a supporter, he did not hold a well-founded fear of persecution by reason of his political opinions or face a real risk of significant harm if returned to Bangladesh. Matters of credit are quintessentially matters of fact for the Tribunal to determine: Parks Holdings Pty Ltd v Chief Executive Officer of Customs (2004) 581 ALD 365 at 393 [124] (Goldberg J). Equally, the weight to be given to country information is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] (Gray, Tamberlin and Lander JJ). 26 In short, neither this Court nor the Court below has jurisdiction to undertake its own assessment of the factual merits of the Tribunal's decision. The Federal Circuit Court was seized with jurisdiction over the Tribunal's decision by s 476 of the Act and had the same original jurisdiction as that vested in the High Court under s 75(v) of the Constitution. As such, the jurisdiction of the Federal Circuit Court was limited to a consideration only of the legality of the decision by the Tribunal to refuse to grant the applicant a visa, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127 [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). As explained in Craig v South Australia (1995) 184 CLR 163 at 179 (see also, Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 574) jurisdictional error in the context of an administrative tribunal such as the Refugee Review Tribunal is established where, for example, the tribunal: "…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers." 27 The decision of such a Tribunal will also be tainted by jurisdictional error where there is a breach of the rules of procedural fairness. However, this represents the limits of the jurisdiction of the Court below with respect to the Tribunal's decision, being a "migration decision" as defined in s 5 of the Act. As such, in contrast to the powers vested in the Tribunal, the Court had no power to grant the appellant a visa or to require that a visa be granted. Nor does that Court otherwise have jurisdiction to undertake a review of the merits of the Tribunal's decision to refuse to grant the applicant a protection visa. 28 The jurisdiction of the Federal Court, in turn, on appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth), is in the nature of a rehearing. This Court is required to consider whether there is error in the decision of the Court from which the appeal is brought. As such, I am equally constrained from embarking upon a consideration of the merits of the applicant's claims.

3.4.3 Proposed ground 3, draft notice of appeal 29 The proposed third ground alleges first that the Tribunal, when assessing the applicant's credibility, did not consider his application as a whole and thereby failed to accord him procedural fairness. However, as the Court below held at [25], it is apparent from the reasons of the Tribunal that it did consider the totality of his circumstances. The fact that the Tribunal was not satisfied of the credibility of the applicant's claims does not point to any failure to consider the application as a whole. 30 The proposed ground also contends that the Tribunal failed to investigate the authenticity of the Letter of Support with the authors before dismissing his application. In rejecting this aspect of the claim, the Court below correctly applied the decision of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 (SZIAI). In that decision, the High Court made it clear that the Tribunal is under no general obligation to make inquiries. As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ emphasised at 1129 [25]: "The duty imposed upon the [Refugee Review] Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review." (emphasis added) 31 If such a failure were established, the plurality considered that it would not constitute a breach of the rules of procedural fairness, but left open the possibility that it could give rise to jurisdictional error, whether by constructive failure to exercise jurisdiction or in some other way. Their Honours did not find it necessary to decide the latter question for two reasons. First, the plurality held that there was nothing on the record to indicate that any further inquiry by the Tribunal into the authenticity of the certificates could have yielded a useful result. As the plurality said at 1129 [26], "[t]here was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision." Secondly, the submission to the Tribunal from the visa applicant's legal representatives had indicated the futility of any further inquiry (at 1129 [26]). 32 I also note that it has been said that the circumstances in which such a failure might be established are likely to be "rare or exceptional": Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at 172 [60] (Kenny J) (recently approved in Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 at [28] (Katzmann J)). 33 In the present case, there is no evidence of any request that the Tribunal undertake any investigation, as the Court below observed at [27]; nor any suggestion as to what line of inquiry it might pursue. Furthermore and crucially, as in SZIAI, there was no material to suggest that any information of use might have been uncovered if the Tribunal had undertaken further investigation into the authenticity of the certificates. In those circumstances, there is nothing to suggest that there has been a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, which was capable of providing a sufficient link to the outcome so as to constitute a failure of the statutory obligation "to review". In the circumstances, therefore, it was open to the Tribunal to give no or little weight to the Letter of Support, having regard to its findings that the applicant was not a credible witness and the country evidence as to the prevalence of fraudulent document in migration matters from Bangladesh, as the Court below held at [28].

3.4.4 The applicant's submissions in support of his application for an extension of time 34 Finally, the applicant's oral submissions were not directed towards identifying error in the decision below and (as had been the case before the Court below) did not address the grounds identified in the draft notice of appeal. Rather, they centred on the merits of his claim for a protection visa. The applicant also requested that the Court permit him to remain in Australia for at least a period of two years. These submissions, however, assumed a jurisdiction beyond that which is vested in this Court and in the Court below for the reasons that I have already explained.

4. Conclusion 35 For the reasons which I have set out, I have reached the view that the proposed appeal has no prospects of success and the application for an extension of time should therefore be dismissed. The respondent seeks its costs in relation to the application and I do not see any reason as to why such an order should not be made in the circumstances. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.