FEDERAL COURT OF AUSTRALIA P38/2003 v Refugee Review Tribunal [2004] FCA 1767 Federal Court Rules O 52 r 15 Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 distinguished Jess v Scott (1986) 12 FCR 187 applied Minister for Immigration & Multicultural & Indigenous Affairs, Re; Ex parte Lam (2003) 214 CLR 1 applied Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited P38/2003 v Refugee Review Tribunal [2004] FCA 1077 considered P38/2003 v REFUGEE REVIEW TRIBUNAL, MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and COMMONWEALTH OF AUSTRALIA WAD 214 of 2004 RD NICHOLSON J 9 DECEMBER 2004 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 214 OF 2004 BETWEEN: P38/2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 9 DECEMBER 2004 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application for extension of time to file and serve a notice of appeal be refused. 2. The applicant pay the costs of the second and third respondents of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 214 OF 2004 BETWEEN: P38/2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGE: RD NICHOLSON J DATE: 9 DECEMBER 2004 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant applies for an extension of time in which to file and serve a notice of appeal from the judgment of French J given on 18 August 2004 (P38/2003 v Refugee Review Tribunal [2004] FCA 1077). The extension is required because a notice of appeal was not filed and served within the time specified in O 52 r 15 of the Federal Court Rules. That rule provides, nevertheless, in subrule (2): 'Notwithstanding anything in the preceding subrule the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.' 2 The approach to that provision (which I follow) is that which is substantially set out in Jess v Scott (1986) 12 FCR 187 at 194. I regard that as requiring me to consider two aspects particularly. The first is whether there is evidence of circumstances that may establish special reasons. The second is whether there is a real prospect of the applicant succeeding as an appellant in an appeal in any event. 3 The evidence of the applicant in support of the application comes in the form of an affidavit sworn on 27 September 2004. That annexes the reasons of French J. It is sufficient to refer to those reasons to provide the circumstances in which the application falls for consideration. 4 As found by his Honour the applicant is a citizen of Columbia. He arrived in Australia on 26 July 1997. On 20 October 1997 he lodged an application for a protection visa. His claim was that he had a well-founded fear of persecution arising from the persecution of his father by guerrillas in Columbia, which was also directed to the applicant and members of his family. His application was considered and refused by a delegate of the Minister on 28 November 1997. On 9 September 1998 the Refugee Review Tribunal ('the Tribunal') affirmed the refusal of the application for the protection visa. On 8 October 1998 the applicant sought review at first instance before the Federal Court and that application was dismissed. 5 The applicant then joined in represented proceedings brought by Mr Muin and Ms Lie in March and June 1999 in the High Court of Australia. That resulted in the reported decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. It is by way of remitter from the High Court that this matter came to this Court. 6 In his reasons French J set out the reasoning of the delegate, the correspondence between the applicant and the Tribunal prior to the Tribunal hearing on 31 September 1998 and the reasoning of the Tribunal. The ground before French J, consistently with the character of the Muin litigation, raised contentions that the Tribunal had failed to accord to the applicant procedural fairness in relation to favourable country information. That is the relevant portion for consideration of the application today. 7 The reasons of French J set out the evidence before him. They then to turn to deal with ground 1 which was entitled, 'Want of procedural fairness by failure to consider Part B documents favourable to the applicant's case'. It is that portion of the reasons which is germane to a consideration of the application for extension of time. 8 His Honour's reasons prior to addressing that ground describe the documents, referred to as the Part B documents, as comprising two elements, namely, a chapter on Columbia in United States Department Country Reports on Human Rights Practices 1996 and a release by Associated Press on 24 April 1997. His Honour stated in his recounting of matters before the Tribunal, that when the applicant identified human rights reports from the United Nations and a report he made to the police relating to an assault in 1996, the Tribunal member had stated that the Tribunal had a whole library of reference material on Columbia and was quite aware of the violations of human rights. 9 In his reasons on this ground, French J said that there was no reference to the Part B documents in the Tribunal's reasons for decision. However, based on affidavit evidence before him, he was prepared to infer from the reference to that material in the delegate's decision that it was available, at least through a departmental library, to the Tribunal to consider if it wanted to. 10 His Honour described the contents of each of the Part B documents. He concluded in relation to these that they dealt with aspects of reports that would have supported the proposition that guerrillas did engage in activities of the kind recounted by the applicant. He said that none of them however was specific to the applicant. 11 His Honour then stated (at [43]): 'There is no evidence that the Tribunal did not have regard to the documents mentioned in Part B or information of a similar character from other sources. Given that the applicant was not even aware of the content of the Part B documents, and in the absence of any evidence that the Tribunal's letter affected his actions in any way I am not satisfied that any practical unfairness has been demonstrated.' It is to that paragraph that the proposed grounds of appeal and the arguments in favour of granting the extension are directed. 12 His Honour continued in his reasons (at [44] – [45]) by stating as follows: 'Importantly, the Tribunal's decision turned upon its rejection of the applicant's claims because of their inherent implausibility and illogicality. I accept, as submitted by the second and third respondents, that the primary reasons of the Tribunal for rejecting the applicant's claims were that: (a) A large portion of the applicant's evidence was not credible because of its inconsistencies and illogicalities. (b) The applicant was subject to extortionists in Bogota but their motive was simple opportunism and greed. They did not pursue the applicant as a way of harming his father. (c) The applicant's family was not currently facing persecution because a letter from the applicant's father said that he and his family were living in tranquillity. Accordingly the applicant was not at risk of persecution on account of membership of a familial particular social group. As was submitted for the respondents, the evidence does not establish that there was anything in the Part B documents favourable to the applicant which the Tribunal did not take into account and which could have affected its reasoning on the credibility issues and factual findings which determined the outcome in this case.' 13 His Honour also distinguished the factual position in Muin from that which emerged from the evidence in this case stating that Mr Muin believed the Tribunal had received the documents from the Department, set out in Part B of the decision of the delegate, and that he had been misled into believing that it was unnecessary for him to draw the favourable information in those documents to the attention of the Tribunal. 14 The proposed grounds of appeal are in effect twofold, although there are three grounds, the last one not being particularised. One is that French J erred in finding that practical unfairness had not occurred in the proceedings before the Tribunal because there was: 'no evidence that the Tribunal did not have regard to the documents mentioned in Part B or information from a similar character from other sources.' (at [43]) 15 The second is that he erred in determining that procedural fairness did not oblige the Tribunal to put 'its particular construction of the father's letter' to the applicant to afford him the opportunity to make submissions concerning its construction. 16 The second ground is not material to the proposed appeal and is not pursued. 17 The affidavit of the applicant makes apparent that the circumstances in which the appeal is out of time arose from the fact that he, as a then unrepresented litigant who had previously been represented on a pro bono basis, had entrusted papers to Legal Aid and had awaited a response from them. As a result of unsuccessful attempts by both Legal Aid and the applicant to contact each other and those having taken some time to occur, the application was filed on 13 September 2004 when the time had expired on 8 September 2004. The respondents, while stating that there are some gaps in the applicant's evidence to support that as providing a special reason for extension, nevertheless accept that their contradiction to the application is not based heavily on the strength of the circumstances that have occurred. 18 It was to the question of the prima facie strength of the proposed grounds of appeal as referred to in Jess v Scott at 188 and 195 and other authorities that the respondents' contention has been directed. 19 As the proposed appeal is based on grounds which are essentially ones directed to the existence of procedural fairness, it is necessary not only that there be established or that there could be established on the hearing of the appeal the occurrence of the non-provision of some document, in this case the Part B documents, but that it is also shown that it will be arguable that the non‑provision of the Part B documents would have made or could have made a difference. This is partly encompassed within the notion of demonstration of 'practical unfairness' referred to in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1. It was referred to in the decision of the High Court in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 at [34] and [74] – [75]. There at [34] McHugh, Gummow, Callinan and Heydon JJ stated: 'But the failure of the present appellant to file evidence about what he would have done had the Tribunal member's promise been fulfilled is not fatal to the appeal for at least one reason specific to the present case. While the appellant knew that the foreshadowed questions would relate to inconsistencies in what he had said about the detentions, it would not have been possible for him to file an affidavit stating what answers he would have given to particular questions without knowing what the questions would have been. He could not anticipate what material he would be asked to supply, nor could he anticipate how any particular material to be requested would relate to the potential lines of reasoning of the Tribunal member, and hence he could not anticipate what he might usefully say on the subject generally.' 20 Reference to that reasoning illustrates, in my view, the distinction between the present circumstances and those under consideration by the High Court in NAFF. This is not a case where the appellant would not have known what to provide by way of evidence. His complaint is that the Part B documents were not taken into account and that these were documents which he identified. In his reasons, as I have stated, French J distinguished this present set of circumstances also from those in Muin. 21 Importantly, the contentions for the applicant do not, in my view, overcome the effect of the view expressed by his Honour at [44]. Even if the grounds of appeal were made out, they do not address the viability or correctness of the alternative basis of decision which in fact was his Honour's ratio; namely, that the Tribunal's decision turned upon its rejection of the applicant's claims because of their inherent implausibility and illogicality. He set out at [44] the primary reasons why that was so. At [45] he said that it was not established there was anything in the Part B documents which could have affected the reasoning on those issues and the factual findings which determined the outcome in the case. 22 In those circumstances, I consider this is a case where even if the grounds of appeal were successfully made out, they would not establish an error of law sufficient to set aside the reasoning of his Honour. I would not accept that the third ground correctly apprehends the law; that is, that the mere non-provision of the documents would themselves constitute a breach of procedural fairness in the circumstances. It must also be shown that the non-provision would have made a material difference. That is what, in my view, is precluded in these present circumstances. 23 The result is that I do not consider that the grounds of appeal are of sufficient strength as to justify the extension of time even though there is only a relatively short time involved. 24 For those reasons, I consider that the application for extension of time to file and serve the notice of appeal should be refused. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 25 January 2005 Counsel for the Applicant: AJ Goldfinch Solicitor for the Applicant: Goldfinch and Co Counsel for the Respondents: MT Ritter SC Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 9 December 2004 Date of Judgment: 9 December 2004