SZSZW v Minister for Immigration and Border Protection

Background 3 The following background to the application for judicial review is based on the reasons of the primary judge, which are uncontentious regarding these matters. 4 The appellant is a Sri Lankan national of Tamil ethnicity. He arrived in Australia by boat on 7 March 2012 and pursuant to a direction made by the Minister under s 46A(2) of the Act, lodged a protection visa application on 22 June 2012. The applicant claimed to fear kidnap, torture and possibly murder if returned to Sri Lanka due to suspicion of his association with the Liberation Tigers of Tamil Eelam ("LTTE"). This fear was said to be increased by the fact that he had visible scarring left by shrapnel and bullet wounds. He also claimed to fear danger as a returned asylum seeker. 5 The appellant's visa application was dismissed on 7 November 2012 and his application for review was lodged with the Refugee Review Tribunal ("RRT") on 16 November 2012. In the RRT, the appellant's migration agent referred to evidence that returned asylum seekers may be the victims of extortion in the context of a claim by the appellant that he would be at risk of serious harm because of his identity as a returned Tamil failed asylum seeker from Australia. The RRT affirmed the decision to refuse to grant the applicant a protection visa on 30 May 2013. 6 However, the Federal Court on appeal from the FCCA, remitted the matter for reconsideration by the AAT as a result of the RRT's failure to consider the appellant's claim based on fear of extortion: SZSZW v Minister for Immigration and Border Protection [2015] FCA 562.

AAT proceeding 7 By letter dated 7 December 2015, the AAT sent a letter to the appellant inviting him to give evidence and present arguments at a hearing to take place on 13 January 2016, and advised him that if he did not attend the hearing, the AAT may decide his case without further notice. The letter was sent to an address provided to the AAT by the appellant, or on his behalf on 1 September 2015. It appears that the appellant did not receive this letter, having moved to temporary accommodation without informing the AAT of this change of address. 8 Despite hearing reminders sent by SMS to the mobile telephone number provided by the appellant, he did not appear at the hearing. Nor did the appellant contact the AAT subsequently before it decided on 15 January 2016 to affirm the decision not to grant him a protection visa. Before the FCCA judge, the appellant gave evidence that he did not receive the text messages and that he did not learn of the 13 January 2016 hearing and the 15 January 2016 decision until he attended an appointment with an immigration case manager on 26 February 2016. 9 In essence, the AAT found that, while the delegate and the RRT accepted aspects of the applicant's evidence as credible, it could not be satisfied that the appellant's claims were true in the absence of a hearing and where it therefore had no opportunity to assess his credibility. 10 The AAT's reasons for decision include a footnote which refers to the remittal from this Court to the AAT on the ground that the RRT did not consider a claim related to extortion. 11 At [10] of its decision record, the AAT stated: In addition, an important phase of the account of events on which the applicant's protection claims are based is the period lived in Jaffna after being released from camps for those displaced by the conflict. The Tribunal needed to question the applicant in detail about what difficulties he had with Sri Lankan authorities in this period and what interests they have shown in him since he left Sri Lanka. On the evidence before it, the Tribunal considers that there is insufficient detail about those particular issues. In the absence of a hearing, the Tribunal is also unable to discuss with the applicant relevant country information as to whether or not he is at risk of serious harm in Sri Lanka, including extortion, based on, more generally, his ethnicity, his former residence in areas controlled by the LTTE, his failed asylum application in Australia and on any other ground he seeks to raise. 12 Accordingly, the AAT found that it was unable to be satisfied that the appellant held a well- founded fear of persecution on a Refugees Convention ground for the purposes of s 36(2)(a) of the Act, or that there were substantial grounds for believing that there was a real risk he would suffer serious harm so as to satisfy the criteria for complementary protection under s 36(2)(aa).

FCCA reasons 13 On 7 March 2016, the appellant applied for an extension of time under s 477(2) of the Act within which to seek judicial review of the AAT's decision, his application having been filed 16 days after the time-limit imposed by s 477(1) had expired. The primary judge noted that the FCCA judge wrongly identified the delay as being 13 days at [2] of his reasons, and that nothing was said to turn upon that error. 14 The appellant, who was legally represented in the FCCA, identified one ground in his draft amended application which he wished to advance if an extension of time were granted, namely: The second respondent [i.e. the AAT] failed to consider substantial, clearly articulated submissions on the issue of whether the applicant faces a well founded fear of persecution, or a real risk of serious harm on return to Sri Lanka because he would be a returned asylum seeker. 15 The relevant submissions are written submissions dated 27 February 2013 made by the Refugee Advice and Casework Service, on the appellant's behalf, to the AAT. 16 The FCCA judge dismissed the application for an extension of time. The FCCA judge found that the appellant had not given a satisfactory explanation for the delay in applying for judicial review of the AAT's decision. However, his Honour did not regard that as determinative. Rather, his Honour considered at [8] that "the more important issue in the present case are [sic] the merits", presumably (as the appellant submitted) because the delay was short. As to the merits, the FCCA judge found that no sufficiently arguable jurisdictional error was disclosed by the amended application to warrant an extension of time. 17 At [16] of his Honour's reasons, the FCCA judge said: The Tribunal explained that in the absence of an oral hearing, it was unable to discuss with the applicant relevant country information as to whether or not he is at risk of serious harm in Sri Lanka, and materially, for the purposes of the present case, made reference to including the alleged extortion, his ethnicity, his former residence in areas confronted by the LTTE, his failed asylum application in Australia, and on any other ground he seeks to raise. The reference to extortion and failed asylum application is clearly a reference to the submission to which Mr Karp referred, and reflects a genuine active intellectual engagement by the Tribunal in the determination of the application for review of the claim of being a failed asylum seeker. 18 At [18] of his Honour's reasons, the FCCA judge concluded: On the face of the Tribunal's decision, there was no failure by the Tribunal to take into account the applicant's submissions, and the Tribunal made dispositive findings in relation to the whole of the applicant's claims that were open to the Tribunal on the material before the Tribunal. There was no failure by the second respondent to consider a clearly articulated submission in relation to the applicant fearing persecution or risk of harm by reason of being a returned asylum seeker. No sufficiently arguable jurisdictional error is disclosed by the amended application to warrant an extension of time in the interests of the administration of justice.

Primary judge's reasons 19 Before the primary judge, the appellant contended that the FCCA judge fell into jurisdictional error in considering the application for an extension of time because he conducted "a fulsome examination of the Tribunal's reasons, and in effect reached a decision, not on whether the substantive application was arguable or reasonably arguable, nor on a [sic] 'an examination of the grounds at what should be a reasonably impressionistic level'". The appellant submitted that the FCCA judge misapprehended the limits of his functions and powers in the exercise of his Honour's discretion pursuant to s 477(2) of the Act. 20 The primary judge concluded that no error could be discerned in the manner in which the FCCA judge determined the extension of time application. 21 The primary judge noted that there was no issue between the parties as to the relevant principles. In determining the extension of time application, it was necessary for the FCCA judge to take into account the principles identified by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [58]-[63], and approved by the Full Court in MZABP v Minster for Immigration and Border Protection [2016] FCAFC 110 at [38]. In particular, Mortimer J considered that: 62 … it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.… If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see … Jackamarra v Krakoer (1998) 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2). 63 The correct approach may be expressed by the use of language such as whether a ground is "arguable", "reasonably arguable", "sufficiently arguable" or has "reasonable prospects of success" … 22 Secondly, the primary judge noted that it was not in issue that, in considering whether the application was "sufficiently arguable", the FCCA judge was not confined to a consideration of the grounds in the draft application for review but was free to also engage with the AAT's reasons. The FCCA judge was entitled, in other words, to explore whether the grounds have any substance: see e.g. DMI16 v Federal Circuit Court of Australia [2017] FCA 1179 at [33]-[36]. 23 The primary judge concluded that the FCCA judge correctly applied the approach identified by Mortimer J in MZABP, noting the following matters: (1) The FCCA judge assessed the merits from the statement of the appellant's case which the primary judge described at [10]-[11], and not by reference to the opposing arguments. (2) The substantive ground which the appellant wished to raise was a failure by the AAT to consider an essential integer of the appellant's claim to fear persecution or serious harm as a failed asylum seeker. (3) The FCCA judge summarised the AAT's reasons. At [16] of his Honour's reasons, the FCCA judge found that the AAT referred to extortion and the appellant's failed asylum application in Australia, which the FCCA judge considered was "clearly a reference to the submission to which Mr Karp [counsel for the applicant] referred, and reflects a genuine active intellectual engagement by the Tribunal in the determination of the application for review of the claim of being a failed asylum seeker". (4) As such, the FCCA judge found that "[o]n the face of the Tribunal's decision" there was no failure by it to take into account the applicant's submissions and to consider a clearly articulated submission. Her Honour found that this approach was consistent with determining whether an application would have any merit at a "reasonably impressionistic level" in the context of an extension of time application under s 477(2) of the Act. (5) In concluding at [18] that "[n]o sufficiently arguable jurisdictional error is disclosed by the amended application to warrant an extension of time in the interests of the administration of justice", the primary judge employed the language ("sufficiently arguable") approved by Mortimer J in MZABP [2015] FCA 1391 to describe the correct approach. His Honour also employed the language of s 477(2)(b) ("necessary in the interests of the administration of justice") at [18] and in concluding at [19] that "[i]n the circumstances of the present case, the Court is not satisfied that it is necessary in the interests of the administration of justice to order an extension of time under s 477 of the Act".

Appellant's submissions 24 The appellant essentially repeated the argument that was put to the primary judge. That is, despite his Honour saying that he took the principles identified in MZABP [2015] FCA 1391 at [58]-[63] into account, the FCCA judge conducted a "fulsome examination of the Tribunal's reasons" and reached his Honour's decision on an "in-depth" examination of those reasons. 25 There will be cases where an application is so devoid of merit that it would be futile to extend time. The FCCA judge's reasons reveal that he formed this view. 26 We do not accept that the FCCA judge's reasons reflect an in-depth examination of the AAT's reasons. His Honour's reasons do not reveal anything more than an impressionistic evaluation of the appellant's proposed ground of review. In particular, the statement, at [16] of his Honour's reasons that the AAT's reference to "extortion and failed asylum application … reflects a genuine active intellectual engagement" does not involve any detailed consideration but only an assessment that, on the face of the AAT's decision record, there was nothing arguable about the proposed ground of review. The same may be said of his Honour's conclusion, at [18] of his Honour's reasons, that there was "no failure" by the AAT to take into account the appellant's submissions or to consider a clearly articulated submission. In [18] of his Honour's reasons, the absence of any excessive consideration of the merits of the proposed ground of review is emphasised by the statement that these conclusions were made "[o]n the face of the Tribunal's decision" and the ultimate finding that no sufficiently arguable jurisdictional error was disclosed. 27 We also reject the submission that the permissible extent of engagement with the reasons of the AAT, and with the associated documentation, is to determine whether there is a factual basis for the proposed ground of review. The issue for the FCCA judge was whether he was satisfied that it was necessary in the interests of the administration of justice to extend time. As Mortimer J observed in MZABP [2015] FCA 1391 at [52], the test is "deliberately broad". 28 Thus, we reject the submission that the primary judge mischaracterised the FCCA judge's reasoning at [19(4)] of her Honour's reasons. We also reject the submission that the primary judge made an error at [19(5)] of her Honour's reasons by failing to conclude that the FCCA judge's language did not reflect his Honour's reasoning process. 29 Finally, we observe that this is not a case where the extension of time application was assessed by reference to only limited materials and argument: cf. Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9], because the relevant materials were confined and the point was a short one. In those circumstances, we do not read his Honour's reasons as going any further than a conclusion that the point which the appellant sought to raise was unarguable.

Conclusion 30 The appeal must be dismissed. Costs should follow the event. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Collier, Wigney and Gleeson