SZTQL v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an application for an extension of time for the filing and serving of the notice of appeal. The applicant, who is a Nepalese man of the Hindu religion, made claims for protection that have now been to two tribunals after rejection by the delegate. The first tribunal's decision was set aside on appeal by this Court, on appeal from the Federal Circuit Court last year, on the ground that the tribunal had exhibited a degree of apprehended bias. The matter came before a second tribunal in 2013 after, obviously, the Full Court decision; and on 11 November 2013, the Refugee Review Tribunal once again affirmed the decision not to grant the applicant a Protection (Class XA) Visa. 2 The issues in the claims by the applicant involve a number of matters, including a relationship he says he had with a young Muslim female, the asserted threats by Maoists against his family and himself, and the relationship of those latter matters with the fact that he had an inter-religious relationship with the Muslim female. It is not my place on this application to form final views about those issues, other than whether to accept the essential submission of the Minister that the extension of time should be refused because of the lack of merit of the arguments. I will return to that in a moment. 3 The applicant was a week out of time. He approached a solicitor - his current solicitor - after the expiry of the time. The evidence is not precise, but it can be inferred that without written reasons there may have been some difficulty in drawing a notice of appeal. I make no criticism of the Federal Circuit Court judge. He delivered an ex tempore judgment, which was later reduced to transcript and settled. In any event, the applicant went to his current solicitor and counsel was briefed promptly thereafter and the draft notice of appeal has been filed. That draft notice will need to be amended in some respects, but I do not propose to conclude that the delay - which the Minister candidly accepts does not cause any prejudice and is not significant. That delay should not bar the applicant from appealing. 4 The real question is as to whether there is any merit at all in the claims of the applicant in relation to the second tribunal's approach. Mr Young - the applicant's counsel - has put on written submissions and developed these in the hearing today. Ms Burnett made helpful submissions this morning, adopting the submissions filed by the Minister's solicitors in relation to those issues. All I wish to say at the moment is that I am not persuaded that the arguments are hopeless. The second tribunal deployed the reasons of the first tribunal in its reasons. It may well be that on full and careful examination of that, on a full appeal, it can be seen that there was a degree of influence of the views of the first tribunal upon the second tribunal's decision-making mind. If that were to be the case, issues would then arise as to the propriety of that at a number of levels, given the deficiencies in the approach of the first tribunal, which were dealt with comprehensively by the Full Court. 5 That said, that is not a conclusion I have finally drawn, but I am not prepared to say from my reading of the application that that is a hopeless argument. There were a number of other aspects of the matter raised by Mr Young which are recorded in the transcript. I do not propose to characterise or give a description of the weight of the arguments, except to say that, at the moment, I am not prepared to conclude that they are without merit, and therefore not prepared to conclude that they demand a dismissal of the application. 6 For those reasons, I propose to order that time be extended for the filing and serving of a notice of appeal from the orders of the Federal Circuit Court made on 4 August 2014, up to and including Tuesday, 2 December 2014. I will not restrict the notice of appeal to the draft form that is currently before the Court. Counsel may wish to consider its precise form in the light of discussion and his address today, but the extension of time is up to and including Tuesday 2 December. It is convenient if the matter is thereafter dealt with a degree of expedition, given that the history of the matter has dragged on somewhat, and I do not use that expression critically of anyone. Unless the parties wish to address me to the contrary, I propose to fix the appeal for hearing before me on a date to be fixed in the February appeal period. 7 The parties may discuss the filing of any further submissions, but if I may respectfully suggest, costs could be moderated by the use of the current submissions, and the parties being at liberty to supplement those. 8 The orders I will make are that: (a) The time be extended up to and including Tuesday 2 December 2014 for the filing and serving of a notice of appeal from the orders of the Federal Circuit Court made on 4 August 2014. (b) On or before Monday 2 February 2015, the applicant through his counsel and solicitors file and serve a court book using the content of the application book presently in existence, utilising as much as possible the existing submissions. (c) The parties have liberty to approach jointly the National Appeals Registrar for the fixing of a date of the appeal to be heard before the Chief Justice as a single judge in the February appeal period. (d) Costs of the application for an extension of time be costs in the appeal. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.