SZTZE v Minister for Immigration and Border Protection

1. The application for an extension of time to appeal from the judgment of the Federal Circuit Court of Australia filed on 18 September 2016 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.

(Revised from transcript) 1 The applicant is a Sri Lankan national of Tamil ethnicity who arrived in Australia on 31 May 2012. He claims to fear harm from Sri Lankan authorities on account of his ethnicity and because support for the Liberation Tigers of Tamil Eeelam (LTTE or Tamil Tigers) has been imputed to him. He applied for a protection (class XA) visa on 31 August 2012. A delegate of the Minister refused the application. The applicant applied to the Refugee Review Tribunal (the functions of which are now exercised by the Administrative Appeals Tribunal) for review of that decision on the merits but the Tribunal affirmed the delegate's decision, holding that it was not satisfied that the applicant was a person to whom Australia owed protection obligations. He then sought judicial review in the Federal Circuit Court but on 18 August 2015 that application was also dismissed. He wants to appeal from the judgment of the Federal Circuit Court but he did not file a notice of appeal within the prescribed time. Consequently, he seeks an extension of time to appeal. 2 The application for an extension of time was filed on 18 September 2015. It was supported by an affidavit to which the judgment of the court below and the Tribunal's decision were annexed. No submissions were filed. In the affidavit the applicant said only: … 3. My case was rejected and I was not sure what to do. 4. I am not legally represented and I do not understand what to do next legally. 5. I relied on my friends to help me out. 6. I do not have money to hire a lawyer. 3 The application was filed a mere three days outside the prescribed period (see Federal Court Rules 2011 (Cth), r 36.03(a)(i)) and the Minister does not claim that he is prejudiced by the delay. 4 At my invitation the applicant gave sworn evidence confirming the contents of the affidavit, since I was not satisfied that he was literate in English and the affidavit did not bear any statement to the effect that it had been interpreted to him in the Tamil language. 5 Through a Tamil interpreter, however, the applicant affirmed the contents of the affidavit. 6 I then invited the applicant to make submissions in support of his application, and he made submissions to the effect of the matters recited in the affidavit. He also stated that no one had explained to him the contents of the application, which I took to be the application in the Circuit Court. He said that his lawyer gave him a letter stating that his case had been rejected, but that he gave the letter to him "late". While there is a lack of precision in the explanation for the delay, and, to a degree, there are some difficulties with it given that the applicant was represented in the court below, I am prepared to accept it. But the application should be dismissed since it would be futile to grant an extension of time to appeal when the appeal would be bound to fail. 7 First, the applicant identified no error in or affecting the primary judge's reasons. When I invited him to identify such an error, he said that the contents of the judgment had not been interpreted or explained to him. I asked him whether, in effect, he was saying to me that he did not know whether the judge made any errors or not, and he confirmed that that was his position. While, if it be the case, it is unfortunate that the reasons for judgment were not interpreted or explained to the applicant, to succeed on an appeal from the Federal Circuit Court, the applicant must show that the primary judge fell into error: see for example, SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11]. 8 Secondly, in the proceeding before the primary judge, the only basis upon which the applicant sought to impugn the Tribunal's decision was that it had applied the wrong test under s 91R(2) of the Migration Act 1958 (Cth). The effect of s 91R, read with ss 36(2)(a) and 65 of the Act, was that the Minister may not grant a non-citizen a protection visa unless he is satisfied that the applicant has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and is unable or, owing to that fear, unwilling to avail himself of the protection of his country of nationality; that such a ground or grounds are the "the essential and significant reason(s)" for the applicant's fear, that the harm be "serious" and that the conduct be "systematic and discriminatory". At the material time s 91R(2) relevantly provided that, without limiting the meaning of serious harm, the following are instances of serious harm for the purposes of paragraph 36(2)(a): (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. 9 In the court below the applicant contended that the Tribunal applied the incorrect test under the subsection because it had made a qualitative assessment of the nature and degree of the harm he would experience when asking whether the threat to his liberty was "sufficiently significant" to constitute serious harm, and that this was a jurisdictional error. For this proposition he relied on the judgment of North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 at [30] and [45]. 10 The difficulty with this contention is that this judgment was set aside on appeal to the Full Court and an appeal from that judgment to the High Court was unanimously dismissed: Minister for Immigration and Border Protection v WZAPN (2015) 320 ALR 467; [2015] HCA 22. If the Tribunal did apply the test the applicant identified, it would not have fallen into jurisdictional error in so doing. It was for this reason that the applicant failed below. The primary judge said at [2]: The solicitor for the applicant accepts that the decision of WZAPN v Minister for Immigration & Anor [2014] FCA 947 has been overruled by the High Court and that ground 1 cannot be made out. That concession is properly made and consistent with the duties imposed upon legal practitioners under the Migration Act. No other ground has been identified in the application and no other argument has been advanced to suggest jurisdictional error by the tribunal. I am satisfied that there was no jurisdictional error by the tribunal. The amended application is dismissed. 11 There is no reason to doubt the correctness of the primary judge's decision. The only basis upon which relief could have been granted to the applicant was if he was able to establish jurisdictional error: see Migration Act 1958 (Cth), s 474, Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. In the face of the solicitor's concession and in the light of the High Court's reasons, the primary judge had no option but to dismiss the application. 12 Costs should follow the event. 13 There will be orders accordingly. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.