SZVSQ v Minister for Immigration and Border Protection

The federal circuit court proceeding 9 The applicant sought review of the Tribunal's decision in the Federal Circuit Court. 10 On 3 May 2017 the applicant's application was listed for a show cause hearing in that court. The applicant raised two grounds of review which were, as written: 1. The Refugee Review Tribunal wrongly affirmed the decision. 2. The Tribunal is aware that if I go back to Indonesia I will not be able to work. I will suffer serious harm, as not able to support myself. The Tribunal made a serious mistake by denying me protection visa. 11 The Federal Circuit Court dismissed the applicant's application. The primary judge: (1) noted that the grounds of the application took issue with the Tribunal's finding in respect of his claim that he would not be able to work in Indonesia. The primary judge held that the finding made by the Tribunal and the antecedent findings that informed it were, on the evidence, all reasonably open to the Tribunal; (2) found that the Tribunal gave cogent reasons as to why the requisite level of satisfaction could not be reached, such that the Visa should not be granted to the applicant; (3) accepted the Minister's submission that the grounds sought impermissible merits review and that they did not raise an arguable case; (4) noted that the applicant was invited to a hearing pursuant to s 425 of the Act and that, on the evidence before the court, the invitation complied with all of the relevant statutory and regulatory requirements. The primary judge observed that the hearing was a meaningful opportunity for the applicant to give his evidence and arguments in relation to the issues in the review; (5) found that the evidence before the Tribunal was not caught by s 424A(1) of the Act by reason of the exception in s 424A(3); and (6) found that the Tribunal dealt with all of the applicant's claims; that the applicant was given the opportunity to explain his claims and to give his evidence; and that any complaint about the Tribunal's inability to reach the requisite level of satisfaction as mandated by s 65 of the Act could not be said to raise any legally arguable case.

the application for an extension of time and leave to appeal 12 The applicant's application for an extension of time and leave to appeal includes the following grounds: 1. When I appeared before his Honour Judge Nicholls I did not receive a judgment. I recently received an Order from the Federal Court by Express Post dated 3 May 2017. 2. I will provide grounds of application when I receive the judgment. 13 The application is accompanied by an affidavit affirmed by the applicant on 31 May 2017. In his affidavit the applicant says that he appeared before the primary judge and has not yet received a judgment; that he received an express post item on 23 May 2017 enclosing an order from the Federal Circuit Court dated 3 May 2017; and that he "ask[s] the Honourable Court to accept [his] application for extension of time and leave to appeal as well as Draft Notice of Appeal, and [he] hope[s] that the Honourable Court accepts [his] explanation as to the delay in submitting this application to the Federal Court of Australia". 14 The affidavit annexes a draft notice of appeal which identifies two proposed grounds of appeal. They are, as written: 1. His Honour Judge Nicholls has not given me a judgement yet. On 23 May 2017 I received an Order from the Federal Circuit Court dated 3 May 2017. 2. I do not agree with the Order made by His Honour Judge Nicholls and I am waiting for the judgment to provide more details as to the grounds of appeal. 15 Pursuant to r 35.13 of the Rules the applicant was required to file his application for leave to appeal within 14 days after the date on which the orders were made by the Federal Circuit Court. That is, he was required to file the application for leave to appeal by 17 May 2017. The application was filed on 1 June 2017 and thus the applicant requires an extension of time of 15 days within which to seek leave to appeal. 16 The principles relevant to the exercise of discretion to grant an extension of time and to grant leave to appeal are well established. 17 In relation to an extension of time the Court will usually consider the length of the delay; whether the delay has been adequately explained; whether there could be any prejudice to the respondent in defending the proceeding caused by the delay, although the mere absence of prejudice to a respondent is not enough to justify the grant of an extension; and the merits of the substantive appeal if leave were granted: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (per Wilcox J). 18 As concerns the last of these considerations, the proposed appeal grounds should be considered at a reasonably impressionistic level. The Court should not descend into a fuller consideration of the arguments for and against each ground: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J and, on appeal, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]. 19 In relation to leave to appeal an applicant must show that, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant its reconsideration by a Full Court and that substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. 20 The applicant has not provided any written submissions in support of his application. Today, when invited to make submissions, he informed the Court of the following matters: the applicant said that he wanted to say something about the extension of time. He submitted that he did not receive the letter from the primary judge. He noted that the Minister's solicitors said that they were not satisfied. I assume that the applicant was referring to the Minister's lack of satisfaction with the explanation offered by the applicant for the delay in filing his application for leave to appeal. The applicant further submitted that the interpreter did not say anything to him about the time in which he could appeal. He said that he would like the Court to agree with him; the applicant submitted that it was a big risk for him to return to Indonesia. He said that he had lived here for a long time and is a Christian and cannot live peacefully in Indonesia. The applicant said that he could not seek help from a lawyer because of his financial condition; the applicant further submitted that he would like an extension of time to plead his grounds of appeal; and the applicant informed the Court that he has volunteered to give blood to certain people who "really need [his] blood"; that he would like to be able to live in Australia lawfully, have a business and pay his taxes; and that he would like to become a very good citizen. 21 I turn first to consider the issue of delay. The applicant's explanation for the delay in filing the application for leave to appeal is that he did not receive a written judgment and that he received an order from the Federal Circuit Court on 23 May 2017. In oral submissions he said that he did not receive "the letter" from the primary judge. The applicant was present in court when the primary judge gave his ex tempore reasons for judgment and made orders dismissing the applicant's application. Contrary to the applicant's submission, it is not for an interpreter to inform an applicant or any party to litigation of the time within which steps should be taken, such as the filling of an application for leave to appeal. That said, the applicant was not represented before the Federal Circuit Court and is not represented in this Court. Understandably, he may not be familiar with the requirements of the Court's rules in relation to the time for the filing of court process. 22 The applicant submitted that he would like an extension of time to plead his grounds of appeal. As I have already observed, he was present when the primary judge gave his ex tempore judgment. However, even if he were not able to provide grounds of appeal based on those oral reasons, he has had a copy of the written reasons for judgment of the primary judge since at least late-July 2017 when the affidavit of Chloe Hillary affirmed 24 July 2017 was served on him. That affidavit annexed, among other things, a copy of the decision of the primary judge. Despite that, the applicant has not provided any more detailed grounds of appeal as foreshadowed in his draft notice of appeal. 23 The Minister does not point to any prejudice that he would suffer by reason of an order being made for an extension of time. I infer that there is none. But, even if I am satisfied by the explanation for the delay and that there is no prejudice to the Minister, those factors are not determinative of the application for an extension of time for leave to appeal. Common to both the extension of time and the leave to appeal is the issue of the merits of the proposed appeal. 24 The draft notice of appeal does not include any ground that discloses an arguable case of error on the part of the primary judge. The applicant simply disagrees with the conclusion reached by the primary judge. In my opinion, the proposed appeal is not reasonably arguable, nor do the submissions made by the applicant today disclose an arguable case of error on the part of the primary judge. By those submissions the applicant either seeks merits review or raises issues that simply do not arise or are not relevant to the decision of the primary judge. 25 It follows that the applicant has failed to show that the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration by a Full Court. Substantial injustice would not result if leave were refused.

conclusion 26 In those circumstances the applicant's application should be refused and the applicant ordered to pay the Minister's costs. I will make orders accordingly. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.