SZUUC v Minister for Immigration and Border Protection

Principles on extension application 15 The principles relevant to the exercise of discretion to extend time are summarised elsewhere: CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354 [4], [5]; BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 [19]; SZQCZ v Minister for Immigration and Border Protection [2012] FCA 91 [23]. 16 They are as follows: (a) an extension of time will not be granted unless the Court is positively satisfied that it is proper to do so; (b) the length of the delay is a relevant factor; (c) the appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time; (d) any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time; (e) the merits of the substantive appeal, if leave were granted, are properly to be taken into account; and (f) an extension of time, even for a short period, may be refused if an appeal has no prospects of success.

Delay 17 The application was filed approximately 17 days after expiry of the time for lodging an appeal from the Federal Circuit Court decision. The applicant deposed by affidavit to the reasons for the delay, stating that he was unable to find a lawyer to act without fee, that he had sought help from a community centre and that he had twice unsuccessfully attempted to file notices that had been rejected. Those attempts were only a short time after the expiry of the time period. I accept that the delay was not unduly long, there is some explanation for it, the applicant had made previous attempts to file a notice albeit late, and the first respondent is not prejudiced. Whether the extension should be granted in this case depends primarily on the merits of the proposed appeal.

The proposed ground of appeal 18 The draft notice of appeal was amended twice. The hearing proceeded on the basis of a third draft prepared by a barrister, although the applicant was unrepresented before me. The applicant confirmed to me that it was the ground in the third draft that he sought to rely upon. 19 The proposed ground of appeal is that: His Honour should have found that the Tribunal fell into jurisdictional error in dealing with the Applicant's illegal departure. His Honour should have found that the Tribunal erred in not asking the correct question of intention in respect of the applicant's illegal departure and thereby committed jurisdictional error. His Honour should have found that the Tribunal in consideration of the intentional aspects of the detention and impliedly/expressly referred intentions of the players carrying out detention (and had misconstrued the provision) and erred in construction of the expression 'intentionally inflicted' in the definitions of 'torture' and 'cruel or inhuman treatment or punishment' in s 5(1) of the Migration Act 1958 and arrived at the conclusion that there was no significant harm under error of construction (at [68]; [111]) in circumstances where such poor conditions and so on constitute the above and erred by the composite fashion of application of the Act. 20 I have referred to [111] of the Tribunal's reasons above. At [68] of its reasons, the Tribunal recites the country information that suggested that if the applicant were deported against his will by Australia, he would be interviewed, likely charged for illegal departure, held most likely for 24 hours and then brought before a magistrate; that one group of returnees had to wait four days before being brought before a magistrate in conditions which were overcrowded, unclean and cramped but they were not reported to have been subjected to more serious physical harm or threats of harm while in custody. 21 There are two difficulties with the proposed ground. The first is that the Tribunal's finding was that given the short period of detention that would follow upon the applicant's return to Sri Lanka, there was less than a real chance he would suffer serious or significant harm. Having made that finding, the Tribunal did not make any finding as to whether any harm would be inflicted intentionally (whether in the context of the definitions of 'torture' or 'cruel or inhuman treatment or punishment'). Accordingly, the appeal ground does not engage with any finding of the Tribunal as to intention. 22 The second difficulty is that in SZTAL, the High Court has confirmed the meaning of 'intent.' The Tribunal in SZTAL had expressly considered whether in sending the appellants to prison, Sri Lankan officials could be said to inflict pain or suffering or to intend to cause extreme humiliation. 23 The High Court confirmed that the intention to which the provisions refer is the natural and ordinary meaning of the word 'intends'. The majority concluded (at [28]-[29]) that the Tribunal's findings were open to it: In the present cases the question for the Tribunal was whether a Sri Lankan official, to whom knowledge of prison conditions can be imputed, could be said to intend to inflict severe pain or suffering on the appellants or to intend to cause them extreme humiliation by sending them to prison. That question was to be answered by the application of the ordinary meaning of "intends", as the Tribunal concluded. As has been explained, evidence of foresight of the risk of pain or suffering or humiliation may support an inference of intention. In some cases, the degree of foresight may render the inference compelling. But in the present matters, having regard to the evidence before the Tribunal (including evidence about what the Sri Lankan authorities might know), the Tribunal was entitled to conclude that it was not to be inferred that the Sri Lankan officials intended to inflict the requisite degree of pain or suffering or humiliation. 24 Had there been a finding by the Tribunal in this case as to intention, then the decision of the High Court disposes of any issue as to the correct test to be applied, as referred to in the applicant's proposed appeal ground. Although there was no intention finding, the appeal grounds considered by the primary judge expressly raised the issue of intention and s 36(2)(aa). Those appeal grounds asserted a meaning and test as to intention that conflicts with the High Court's reasons in SZTAL. For example, ground 2 before the primary judge alleged there was no requirement for the infliction of torture to have an intentional element to constitute significant harm. Ground 4 before the primary judge contended the correct test that the Tribunal should have applied was whether the placement by authorities of the applicant into known conditions was intentional. 25 The primary judge considered those appeal grounds and the Tribunal's findings (SZUUC v Minister for Immigration of Australia [6], [7], [12], [17], [18]) and considered the Tribunal correctly identified the law in [16] - [18] of its reasons. In those paragraphs, the Tribunal expressly referred to the meaning of 'significant harm' and 'torture' by reference to the definitions in s 36(2A) and s 5(1). In light of the Tribunal's factual finding that there was less than a real chance or risk that the applicant would suffer serious or significant harm while being held, there is no error by the primary judge disclosed.

Determination of application 26 In the circumstances, the proposed ground of appeal has no prospect of success. 27 Accordingly, even taking into account the relatively short period of delay in seeking to initiate an appeal, the application for an extension of time in which to appeal is dismissed. The applicant is to pay the first respondent's costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.