FEDERAL COURT OF AUSTRALIA AJX15 v Minister for Immigration and Border Protection [2016] FCA 109 Appeal from: AJX15 v Minister for Immigration & Anor [2015] FCCA 1839 File number: NSD 1430 of 2015 Judge: RARES J Date of judgment: 10 February 2016 Legislation: Migration Act 1958 (Cth) guideline PAM3 Protection Visas – Complementary Protection Guidelines Cases cited: AJX15 v Minister for Immigration [2015] FCCA 1839 Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 Jackamarra v Krakouer (1988) 195 CLR 516 R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 Date of hearing: 10 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 19 Counsel for the Appellant: C Parkin Solicitor for the Appellant: Westside Legal Counsel for the First Respondent: R Francois Solicitor for the First Respondent: Clayton Utz ORDERS NSD 1430 of 2015 BETWEEN: AJX15 Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: RARES J DATE OF ORDER: 10 FEBRUARY 2016 THE COURT ORDERS THAT: 1. The application for an extension of time 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. REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) RARES J: 1 This is an application for an extension of time in which to file a notice of appeal from the decision of the Federal Circuit Court given on 3 July 2015: AJX15 v Minister for Immigration [2015] FCCA 1839. The application for an extension of time was filed on 17 November 2015, over four months from the original decision. Background 2 The applicant had been represented throughout the process of the Minister's delegate's assessment of his application for a protection visa and on his application for review of the delegate's decision not to grant that visa, determined by the Refugee Review Tribunal on 19 March 2015. However, he was not represented in the proceedings below, but is now represented by counsel. 3 The applicant's counsel accepts that the trial judge made no error in determining the application for review of the Tribunal's decision that had been asserted in the Court below. The fate of this application depends squarely upon a point that counsel has identified subsequently and it forms the basis of the proposed notice of appeal, namely, that the Tribunal failed properly to consider and apply guideline PAM3 Protection Visas – Complementary Protection Guidelines, promulgated by the then Minister on 21 June 2013 in Ministerial Direction No 56, made under s 499 of the Migration Act 1958 (Cth). The Direction required the Tribunal, relevantly, when exercising its powers under ss 414 and 415 of the Act "to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration". The circumstances in which the extension of time is sought 4 The applicant gave evidence and was cross-examined. In cross-examination he said that he did not read, write or speak English, and that, although he was aware of his right to appeal to this Court from a decision of the Federal Circuit Court, he had been told by a friend that he could also choose to apply essentially, under s 417, to the Minister to grant him a more favourable outcome than the Tribunal. Accordingly, the applicant wrote to the Minister on 20 July 2015 with the assistance of an interpreter, who prepared the English version of his application. On 26 August 2015, the applicant received a letter from the Department telling him that his request to the Minister had been declined. 5 On 6 November 2015, the applicant made an appointment with his new solicitor. That led to the obtaining of counsel's advice and the preparation and filing of the present application and the applicant's affidavit of 12 November 2015. The proceedings in the Tribunal 6 The applicant is a Sri Lankan citizen of Tamil ethnicity. He applied for a protection visa on 27 November 2012. The delegate refused his application on 26 February 2014. He appeared and gave evidence before the Tribunal on 2 March 2015 with the assistance of his solicitor migration agent. The solicitor migration agent made very detailed written submissions to the Tribunal covering a wide range of matters. However, in the over 50 pages of those submissions dated 25 February 2015 it is not apparent that attention was given to the PAM3 guidelines. Nonetheless, one of the matters that the submissions addressed was the possibility that, on his return to Sri Lanka, the applicant might be subjected to persecution or significant harm, attracting Australia's complementary protection obligations for the purposes of ss 36(2)(a) and (aa) because of that country's policy of charging and detaining persons who left there illegally. 7 The applicant claimed that he had left Sri Lanka illegally. The Department of Foreign Affairs and Trade (DFAT) had provided country information to the Tribunal that when persons who had departed Sri Lanka illegally returned, they would be brought before a magistrate, fined and released. The applicant's submission to the Tribunal cavilled with the DFAT assessment that such treatment of illegal departees was applied generally to all such persons when they returned. 8 The Tribunal considered that issue in detail in its reasons. It found that country information indicated that prison conditions in Sri Lanka were poor and did not meet international standards due to gross overcrowding and lack of sanitary facilities and it accepted the DFAT country information that, after a relatively short period of remand, the applicant would be brought before a magistrate, fined and released. 9 That finding formed the foundation of the applicant's new ground that he wishes to advance if he is able to appeal to this Court. In essence, he contended that since he would be detained on remand in those prison conditions until he could be brought before a magistrate, the Tribunal had to, but failed to have, regard to the PAM3 guidelines. 10 The Tribunal identified the definitions, in s 5(1) of the Act, of cruel or inhuman treatment and degrading treatment or punishment for the purposes of considering the applicant's claim for complementary protection. The Tribunal referred, in a footnote, to the parts of the PAM3 guidelines and to authorities in this Court and the Federal Circuit Court that dealt with how cruel or inhuman treatment or punishment, or degrading treatment or punishment might be characterised. 11 The Tribunal found that, under Australian law, cruel or inhuman treatment or punishment must be intentionally inflicted, and degrading treatment or punishment must be intended to cause extreme humiliation. It found that mere negligence or lack of resources did not suffice to give rise to cruel or inhuman or degrading treatment or punishment, and in that respect, in a footnote, it referred specifically to, among others, the PAM3 guidelines. It found that a relatively short period of remand, of the nature referred to in the DFAT country information, for illegal returnees before they were brought before a magistrate did not amount to an act or omission by which severe physical or mental pain or suffering was intentionally inflicted on an applicant, or would amount to an act that could reasonably be regarded as cruel or inhuman. 12 The Tribunal found that such a period of remand was not intended to cause extreme humiliation that was unreasonable. It concluded that the evidence before it did not indicate that the applicant's circumstances would give rise to a real risk of significant harm as a result of him being detained on remand for a relatively short time. The applicant's submissions 13 The applicant argued that the Tribunal's reasons did not exhibit an active intellectual engagement with the requirements of the PAM3 guidelines, relying on the decision of Lindgren, Rares and Foster JJ in Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at 7 [48]. The applicant accepted that he would need leave to raise the sole ground of his intended appeal because it had not been addressed to the trial judge. But, he argued that the Court ought grant that leave because, if the ground had merit, the lack of the applicant's representation below was a sufficient explanation for allowing it to be advanced, having regard to the fact that it was a pure point of law not requiring further facts to be considered. Consideration 14 The test for granting an extension of time was explained by Brennan CJ and McHugh J in Jackamarra v Krakouer (1988) 195 CLR 516 at 519-520 at [3]-[4], with the agreement of Kirby J at 540 [66(4)]. They applied what Lord Denning MR had said in R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091, namely: We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which out to be heard, in fairness to the parties, we may think it proper that the case should be allowed to proceed and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. 15 Brennan CJ and McHugh J pointed out that Lord Denning MR had been considering an application for an extension of time to lodge an appeal and they said that that class of case involved a respondent who had a vested right to retain the judgment the subject of the proposed appeal. They observed that: "To grant the application for an extension of time is to put at risk a vested right of the respondent". Their Honours said this was in contradistinction to a situation where an appeal was already on foot and there was an application for an extension of time to take a step within such a proceeding, when a more liberal approach may be applied. 16 In my opinion, having regard to the Tribunal's reasons, the proposed sole ground of appeal in the circumstances of this case, has no real prospect of success. 17 Moreover, the applicant has failed to explain why he delayed between late August 2015, when he learned that the Minister had refused his request for consideration under s 417, and early November 2015 when he first consulted his solicitor. I accept the applicant's evidence that he was not aware of a time limit within which he had to file an appeal before he consulted his solicitor. However, he chose to take a different avenue than directly appealing from the trial judge's decision. When that avenue, namely, of seeking Ministerial intervention had failed, he then took a significantly long period of time, for which he has given no explanation in which to seek legal advice before he commenced this application. 18 In all the circumstances, having regard to the weakness of the proposed ground, the failure of the applicant to raise the point earlier, albeit understandable because he was not represented, and his delay, I am not persuaded that this is an appropriate case in which to exercise the Court's discretion to extend time to allow the appeal to be filed. Conclusion 19 In my opinion, the application for an extension of time must be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 17 February 2016