FEDERAL COURT OF AUSTRALIA SZREW v Minister for Immigration and Citizenship [2013] FCA 289 Citation: SZREW v Minister for Immigration and Citizenship [2013] FCA 289 Appeal from: Application for extension of time from decision in SZREW v Minister for Immigration and Citizenship [2012] FMCA 1098 Parties: SZREW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and SUE CROSDALE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NSD 2179 of 2012 Judge: FLICK J Date of judgment: 4 April 2013 Catchwords: MIGRATION – Independent Merits Reviewer concluding that the Applicant was not a refugee and that no protection visa should be granted – no jurisdictional error – no lack of rationality or logic - right to legal representation – right to competent representation – no denial of procedural fairness ADMINISTRATIVE LAW – need to base decision on current information – no irrationality in not basing decision on information not then available – right to counsel – right to competent counsel PRACTICE AND PROCEDURE – application for extension of time – extension refused – no prospects of success Legislation: Federal Court Rules 2011 rr 36.03, 36.05 Federal Court Rules 1979 O 52 r 15 Cases cited: Ali v The Queen [2005] HCA 8, 79 ALJR 662 Bell v Cone, 535 US 685 (2002) Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197 Glover v United States, 531 US 198 (2001) Massaro v United States, 538 US 500 (2003) Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 77 ALR 601 Petrovic v Spanjic [2004] FamCA 1313, 190 FLR 10 Rompilla v Beard, Secretary, Pennsylvania Department of Corrections, 545 US 374 (2005) Stewart v Grauby [2012] FCA 703 SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281 United States v Cronic, 466 US 648 (1984) Ipp, Judicial Intervention in the Trial Process (1995) 69 ALJ 365 Date of hearing 8 March 2013 Place Sydney Division GENERAL DIVISION Category Catchwords Number of Paragraphs 30 Solicitor for the Applicant The Applicant appeared in person Counsel for the Respondents Ms L Buchanan Solicitor for the Respondents Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2179 of 2012 BETWEEN: SZREW Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent SUE CROSDALE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER Second Respondent JUDGE: FLICK J DATE OF ORDER: 4 APRIL 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Application for an Extension of Time is dismissed. 2. The Applicant is to pay the costs of the First Respondent Note: Entry of orders is dealt with in Order 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2179 of 2012 BETWEEN: SZREW Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent SUE CROSDALE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER Second Respondent JUDGE: FLICK J DATE: 4 APRIL 2013 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The Applicant is a citizen of Sri Lanka. 2 He arrived in Australia in May 2010 and made a request for a Refugee Status Assessment in July 2010. On 6 January 2011 an officer of the Department of Immigration and Citizenship found the Applicant not to be a person to whom Australia owed protection obligations. The Applicant thereupon applied for an Independent Merits Review in February 2011. An interview was conducted in June 2011 and in February 2012 the Independent Merits Reviewer recommended that the Applicant did not meet the criteria for a protection visa. 3 An application for judicial review of that recommendation was filed with the Federal Magistrates Court. That Court dismissed the application on 13 November 2012: SZREW v Minister for Immigration and Citizenship [2012] FMCA 1098. The Applicant was not in Court when judgment was delivered. 4 An Application for an Extension of Time was filed in this Court on 18 December 2012. That Application was supported by an Affidavit affirmed by the Applicant. In that Affidavit the Applicant relevantly says as follows: I could not make this appeal within 21 days, due to a number of reasons, including: (a) The decision was made by the Federal Magistrate Court as an ex tempore decision on 13 November, but I was verbally notified on 21 November 2012. (b) The decision was delivered in the Federal Magistrate Court as an ex tempore decision on 13 November, but a written decision was not available until 26 November 2012 to seek legal advice and appeal the decision in time. (c) I am applying myself with assistance from community volunteers. The proposed Notice of Appeal which is annexed to the Affidavit sets forth the proposed Grounds of Appeal as follows: 1. That there is a jurisdictional error in the Federal Magistrate Courts decision. 2. The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent's recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical nor rational. 3. Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed. 5 The Applicant appeared before this Court by way of a video link. He had the assistance of both an interpreter and a representative of a community assistance provider. 6 The Application for an Extension of Time is to be dismissed. THE TIME WITHIN WHICH TO APPEAL 7 In the absence of an order extending time, any appeal to the Federal Court of Australia from a decision of a Federal Magistrate is required to be filed within 21 days: Federal Court Rules 2011 r 36.03. That rule provides as follows: Time for filing and serving notice of appeal An appellant must file a notice of appeal: (a) within 21 days after: (i) the date of which the judgment appealed from was pronounced or the order was made; or (ii) the date on which leave to appeal was granted; or (b) on or before a date fixed for that purpose by the court appealed from. This rule is the counter-part provision to the now-repealed Order 52 r 15(1) of the former Federal Court Rules. 8 Provision for a party to apply for an order extending time within which to appeal is currently to be found in r 36.05 of the Federal Court Rules 2011. That rule provides as follows: Extension of time to file notice of appeal (1) A party who wants to apply for an extension of time within which to file a notice of appeal must file an application, in accordance with Form 67. (2) The application may be made during or after the period mentioned in rule 36.03. (3) The application must be accompanied by the following: (a) the judgment or orders from which the appeal is to be brought; (b) the reasons for the judgment or orders, if published; (c) an affidavit stating: (i) briefly but specifically, the facts on which the application relies; and (ii) why the notice of appeal was not filed within time; (d) a draft notice of appeal that complies with rules 36.01 (1) and (2). The now-repealed Order 52 r 15(1)(b) expressly provided that an appeal could be filed "within such further time as is allowed by the Court or a Judge…". 9 The principles guiding the exercise of the discretion to grant an extension of time within which to appeal remain common to both the former and current Rules. When considering whether to grant an extension of time, Collier J in SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281 said: [15] In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Wilcox J explained principles relevant to the exercise of the power of the Court to extend time in which to make an application under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). These principles are of general application. In summary, relevant factors for consideration by the Court include: • whether the applicant has provided an acceptable explanation for the delay in lodging the application; • whether the respondent would suffer prejudice in light of the delay should an extension of time to lodge the application be granted; and • the merits of the substantial application. Where (for example) a draft notice of appeal did not disclose "viable" grounds, Yates J has refused an extension of time: Stewart v Grauby [2012] FCA 703. 10 The exercise of a discretionary power conferred upon a court to extend time is a power to be exercised to enable justice to be done between the parties; it is not a discretionary power which is to be "automatically" exercised: Gallo v Dawson (1990) 64 ALJR 458, 93 ALR 479. When considering the discretion to extend time conferred by the former O 60 r 6 of High Court Rules 1952, McHugh J there observed in Gallo v Dawson (1990) 64 ALJR 458, 93 ALR 479 at 480: … The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties… This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal … It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted…: (1990) 64 ALJR at 459. Aff'd: Gallo v Dawson (No 2) (1992) 109 ALR 319. Appl'd: SZIOE v Minister for Immigration and Citizenship [2007] FCA 1176 at [26] per Gilmour J; SZLSI v Minister for Immigration and Citizenship [2008] FCA 1052 at [8] per Flick J; Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [57] per Foster J; Sochorova v Minister for Immigration and Citizenship [2009] FCA 555 at [39] to [40] per Spender J. See also: SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 at [18]. THE ABSENCE OF MERIT 11 The explanation for the apparent delay in seeking to appeal the November 2012 decision of the Federal Magistrate is accepted by the First Respondent. It is also accepted that the period of time between the Applicant becoming aware of the decision of the Federal Magistrate and the making of the Application to this Court is comparatively short. 12 The Respondent Minister opposes an extension of time being granted primarily by reason of the absence of any merit in the proposed Grounds of Appeal. 13 The ambit of the argument intended to be embraced by the first Ground of Appeal was clarified during the course of the hearing. At one stage it was understood that the "jurisdictional error" was said to be that the delegate of the Minister who made the Refugee Status Assessment was one and the same person as the Independent Merits Reviewer. That was factually not correct. The delegate was Ms Potter; the Independent Merits Reviewer was Dr Crosdale. 14 The "jurisdictional error" was ultimately understood to be that the Independent Merits Reviewer: (a) was not satisfied that the Applicant had "suffered any Convention related harm, nor … that there [was] a real chance of such harm occurring … in the reasonably foreseeable future" and was, accordingly, not a refugee; and went on to conclude that: (b) the Applicant did not meet the criteria for a protection visa. The Applicant submitted that the Independent Merits Reviewer could not both reach the state of satisfaction expressed and also go on to conclude that the Applicant did not meet the requisite criterion. That argument is rejected. The Independent Merits Reviewer discharged the functions entrusted to her. Moreover, having once reached the conclusion that she was not satisfied that the Applicant was a refugee it inevitably followed that the Applicant did not meet the criterion for a protection visa. 15 The first Ground of Appeal is thus without merit. 16 The second Ground of Appeal seeks to contend that the reasons provided "were neither logical nor rational". When seeking to address that which was "irrational" or "illogical", Rares J in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58, 202 FCR 1 referred to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 and helpfully summarised some of the authorities as follows: What is irrational, illogical and not based on findings or inferences of fact supported by logical grounds? [2] There are differences in reasoning apparent in the three separate judgments in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 as to what will suffice to support a finding that a decision of the decision-maker's state of satisfaction that a statutory criterion had or had not been met is irrational, illogical, and not based on findings or inferences of fact supported by logical grounds. That formulation derived from what Gummow J had said in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [141]-[145]: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 at [34], see too at [35]-[36] per McHugh and Gummow JJ: see too: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ, cp the view of Deane J at 367. [3] In SZMDS at [77]-[79] Heydon J reasoned that a decision as to satisfaction was not illogical if the issue was one on which minds might differ because, for example, the difference was one of degree, impression and empirical judgment. His Honour inferred that the decision-maker there had selected a major premise as the foundation of her reasoning and operated on that premise, even though she had not stated it (at [74]-[75]). Crennan and Bell JJ held that illogicality or irrationality sufficient to give rise to jurisdictional error meant that, where the question was whether a decision-maker had been satisfied of a matter, the decision to which he or she came was one at which no reasonable decision-maker could arrive on the same evidence (at [130]). Their Honours appear to have decided that where a decision-maker gives reasons and those reasons do not reveal a logical or rational path of thought, but the decision is one to which some logical or rational mind could have come, even if no logic or rationality appears in the reasons given, a jurisdictional error will not be found. At least, that is what I understand their Honours to be saying in the following passage (at [131]; see too at [135]): "The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion." [4] Their Honours went on to say that the correct approach was to ask whether it was open to the decision-maker "to engage in the process of reasoning in which it did engage and make the findings it did make on the material before it" (at [133]). When referring to this passage, Dodds-Streeton J has stated that the "threshold for establishing illogicality is … on any view … very high": MZYOI v Minister for Immigration and Citizenship [2012] FCA 868 at [165], 130 ALD 256 at 283. 17 The ambit or content of the argument intended to be embraced by the second Ground of Appeal in the present proceeding was also clarified during the course of the hearing. The argument sought to be advanced is that the recommendation of the Independent Merits Reviewer lacked rationality and logic by reason of the Reviewer basing her recommendation upon the materials and information before her and not by reference to (either in whole or in part) materials and information which post-dated both her own recommendation and the decision of the Federal Magistrate. The argument has only to be stated for its lack of merit to be self-evident. Moreover, the further and more recent information is in essence an impermissible challenge to the merits of the recommendation. 18 A decision-maker, it may be accepted, is generally required to base a decision upon the materials available and this may require a decision to be based upon the "most current material available": Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45. Mason J there observed: ….. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker. An administrative decision-maker may thus be required to take into account "any facts which have arisen since [any earlier consideration] … and, secondly, any matters put before it which serve to 'correct, update or elucidate' anything which it may have said in" an earlier report: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 77 ALR 601 at 606 per Wilcox J. The rationality of any administrative decision, in such circumstances, is thus to be gauged by reference to the materials in fact available to a decision-maker and the submissions advanced and by reference to any further materials which may have emerged since any earlier consideration that may have been given to a matter by a decision-maker. 19 But the rationality of any administrative decision cannot generally be impugned by reference to materials and information not available to a decision-maker and – more importantly - not even available until after a decision has been made. The further materials sought to be relied upon by the Applicant, it is further understood, referred to facts and events occurring after the recommendation of the Independent Merits Reviewer and after the decision of the Federal Magistrate. In the absence of further explanation, it is difficult to see how the rationality of a recommendation based upon the materials then available for consideration can be impugned by reference to facts and circumstances that had not even transpired when the recommendation was made. 20 The second Ground of Appeal is also rejected. 21 No further Ground of Appeal has been formulated in writing, as envisaged by the reservation expressed in proposed Ground 3. Again, however, during the course of the hearing, the Applicant outlined an argument that he wished to be taken into account. The argument was that he had been inadequately represented before both the Independent Merits Reviewer and the Federal Magistrates Court. He submitted that he had not been represented "properly". His legal representative, the Applicant submitted, failed to tender to both the Independent Merits Reviewer and the Federal Magistrate further materials he wished to rely upon. 22 In the very different context of a criminal proceeding, it has been recognised that the inexperience of counsel may be a reason for judicial intervention: see Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197. See also: Ali v The Queen [2005] HCA 8, 79 ALJR 662. An appeal, however, will not be allowed where the incompetence of counsel has not been shown to have affected the result: Petrovic v Spanjic [2004] FamCA 1313, 190 FLR 10. See also: Ipp, Judicial Intervention in the Trial Process (1995) 69 ALJ 365 at 370 – 371. In the United States it has been concluded that there is a constitutional right to legal representation which includes the right to effective assistance of competent counsel: cf United States v Cronic, 466 US 648 (1984); Glover v United States, 531 US 198 (2001); Bell v Cone, 535 US 685 (2002); Massaro v United States, 538 US 500 (2003). See also: Massaro v United States, 538 US 500 (2003). See also: Rompilla v Beard, Secretary, Pennsylvania Department of Corrections, 545 US 374 (2005). 23 Where there is a right to legal representation in administrative proceedings as an incident of natural justice or procedural fairness, that right most probably also extends to the right to competent representation. The question of what facts would have to be established before any finding could be made that the legal representation of a person fell so far short of competent representation such that there was a denial of procedural fairness may be left to one side. Nothing that the Applicant has submitted in the present proceeding provides any basis or necessity for further considering the extent of what is embraced by a right to legal representation. 24 The bare assertion in the present proceeding that a legal representative failed to tender unspecified materials does not provide a basis for concluding that the manner in which the interview was conducted before the Independent Merits Reviewer or (more relevantly) the hearing before the Federal Magistrates Court fell short of competent assistance and representation. 25 The Applicant, it should further be noted, has been represented both prior to the interview with the Independent Merits Reviewer and the Federal Magistrates Court. Even if there was a failure to tender materials, as submitted, that failure does not of itself establish any necessary denial of procedural fairness or jurisdictional error on the part of the Independent Merits Reviewer. 26 Any further argument founded upon an asserted absence of competent legal representation is also considered to be an argument without merit. 27 No further Ground of Appeal has been identified which has any prospects of success. 28 During the course of the hearing, it should finally be noted, the Applicant sought to tender further materials. They were "marked for identification". Those materials have been reviewed. They are but an impermissible attempt to re-agitate the merits of the recommendation made by the Independent Merits Reviewer. CONCLUSIONS 29 Although the extension of time in which to appeal is short, and the Applicant has provided an explanation as to the delay, the proposed Notice of Appeal raises no argument which has any prospects of success sufficient to warrant an extension of time being granted. Nor was any further argument foreshadowed which had any prospects of success. It is due to the complete lack of merit that the Application for an Extension of Time should not be allowed to succeed. 30 The Application for an Extension of Time is refused. There is no reason why the Applicant should not pay the costs of the First Respondent. THE ORDERS OF THE COURT ARE: 1. The Application for an Extension of Time is dismissed. 2. The Applicant is to pay the costs of the First Respondent. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 4 April 2013