FEDERAL COURT OF AUSTRALIA SZWDA v Minister for Immigration and Border Protection [2016] FCA 183 Appeal from: SZWDA v Minister for Immigration [2015] FCCA 2621 File number: NSD 1273 of 2015 Judge: LOGAN J Date of judgment: 23 February 2016 Catchwords: PRACTICE AND PROCEDURE – application for extension of time to file notice of appeal – where delay is not excessive – where delay does not prejudice the respondent – where there is adequate explanation for the delay – whether ground of appeal has sufficient prospect of success to warrant grant of extension of time – whether Federal Circuit Court erred in finding applicant had sufficient time to file supporting documents – refusal of adjournment not unreasonable – proposed ground of appeal has no prospect of success – gratuitous addition of further subject to post-hearing written submissions directed to address a particular subject – refusal by Federal Circuit Court to consider that further subject – no denial of procedural fairness – application for extension of time to file notice of appeal dismissed. MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – application for Protection (Class XA) visa – Migration Act 1958 (Cth) – whether the Federal Circuit Court considered information relevant to the applicant's circumstances – whether the Federal Circuit Court failed to take into account all of the applicant's claims. Legislation: Federal Court Rules 2011 (Cth) Cases cited: Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Sullivan v The Civil Aviation Authority (2014) 226 FCR 555; (2014) 141 ALD 540; [2014] FCAFC 93 Tinkler v Elliott [2012] EWCA Civ 1289 Date of hearing: 23 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 22 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Sparke Helmore ORDERS NSD 1273 of 2015 BETWEEN: SZWDA Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 23 FEBRUARY 2016 THE COURT ORDERS THAT: 1. The second respondent named is amended so as to read Administrative Appeals Tribunal. 2. The application for an extension of time in which to file a notice of appeal is dismissed. 3. The applicant is to pay the first respondent's costs of and incidental to the application, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT LOGAN J: 1 The applicant is a citizen of the Islamic Republic of Pakistan. He is a mature aged man and an educated man. I make that observation as a result of seeing the applicant present his submissions today. He is obviously intelligent, possessed of very particular natural dignity and has quite some fluency in English. That is not to say that he is completely fluent, as his submissions were made partially in English but also with the assistance of an interpreter. He came to Australia on 24 June 2013, entering the country on the basis of a tourist visa. On 16 October 2013 he applied for that class of visa under the Migration Act 1958 (Cth) known as a Protection (Class XA) visa (the visa). 2 The basis of his claim is set out in para 1 of the reasons of the Refugee Review Tribunal (Court Book, page 343). The summary there offered by the Refugee Review Tribunal is accurate. Suffice it to say, the claim which the applicant made was based on various fears which he said he held as a result of his adherence to the Shia branch of the Islamic faith. A delegate of the Minister decided on 14 March 2014 not to grant the visa for which the applicant had applied. As was his right, the applicant then sought the review on the merits of his visa application by the Refugee Review Tribunal (the Tribunal). 3 The role of that Tribunal has since been assumed, as a result of legislative amendment, by the Administrative Appeals Tribunal. The only consequence of that for present purposes is that the name of the second respondent to the application should be the Administrative Appeals Tribunal. The Tribunal decided, for reasons which were given in writing that day, on 6 February 2015, to affirm the Minister's delegate's decision. The Tribunal's reasons address comprehensively the claim as made by the applicant. 4 The Tribunal member reached particular views about the applicant's credibility, as well as the authenticity of supporting documents. In the course of the hearing which the Tribunal conducted in January 2015, the applicant made a request for additional time to obtain further documents. That request confirmed a like request made in a statement furnished by the applicant to the Tribunal. The Tribunal refused the request for the adjournment. In that regard, para 34 of the Tribunal's reasons is particularly pertinent: 34. Having considered all of the evidence, the Tribunal considers that the applicant has manufactured all of his claims to fear harm in Pakistan and does not accept that the applicant genuinely fears harm in Pakistan. The Tribunal does not accept that the applicant experienced any threats or harm in Pakistan as a result of his conversion, as a result of the fact that he sold his land for an Imambargah/prayer/teaching facility, his involvement in a Shia organisation, his attendance at a protest, as a result of a speech he gave at an Imambargah, as a result of his attendance at a religious meeting, or as a result of his views on the Koran or scientific ideas. Nor does the Tribunal accept that the applicant gave a speech at the Imambargah or that a fatwa (fiat) was issued by a local Sunni Imam because of a speech he gave at an Imambargah or that an FIR was lodged with the local police. The Tribunal also does not accept that the applicant was attacked by some people on his way to the local post office or that there was an attempt to abduct his children. The Tribunal also does not accept that an attempt was made to abduct the applicant when he was at his friend's house or that he escaped and subsequently hid in a basement with his family. Nor does the Tribunal accept that the applicant's wife and family are now living in a basement and considers his claims as to the various health and medical conditions which he claims they are suffering from have been fabricated. The Tribunal also does not accept the applicant's claims that a wanted order, or arrest warrant has been issued for his arrest. The Tribunal has had regard to the applicant's request in his statement and at hearing for additional time to obtain these documents. The Tribunal considers that the applicant has made ample opportunity to provide documents, and as advised at the hearing, is not satisfied that any further opportunity to do is warranted. The Tribunal does not accept that the fatwa, the FIR, or the letter from the office of Anjuma-e-Muharjeen stating that the applicant had a fatwa and FIR issued against him are genuine documents and considers that they have been fabricated for the purposes of the application. As discussed above, fraudulent documents are readily obtainable in Pakistan. The Tribunal also gives no weight to the document "Am I next?" which the applicant told the Tribunal he had prepared himself. 5 The applicant sought the judicial review by the Federal Circuit Court of the Tribunal's decision. In a reserved judgment delivered on 30 September 2015, that Court decided to dismiss the application for judicial review. The notice of appeal in respect of an appeal from that judgment ought to have been filed within 21 days of 30 September 2015: see r 36.03(a) of the Federal Court Rules 2011 (Cth). The applicant did not file a notice of appeal within that time. He does though seek an extension of time under r 36.05 within which to file a notice of appeal. He made his application within three (3) days of the expiry of the time within which an appeal, as a right, ought to have been instituted. 6 The proceedings this afternoon are concerned with whether or not the extension of time he seeks ought to be granted. In such cases, two issues ordinarily arise. The first is whether there is an adequate explanation for the delay both explanatory of the delay and also addressing what prejudice, if any, would be suffered by the proposed respondent to the appeal? 7 The second issue is, what are the prospective merits of the proposed grounds of appeal? That second issue does not mean that the hearing of an application for an extension of time must subject the grounds to the full rigour of a hearing as if the proceedings were a substantive appeal. Nonetheless, if it can be seen that the grounds have no particular prospect of success, that is always relevant to a decision as to whether to grant the extension, even though there may be an adequate explanation of delay and no particular prejudice to a respondent. 8 In this instance, the applicant does proffer an explanation. He states, and this is not gainsaid by the Minister, that, as a sequel to the Federal Circuit Court judgment, he suffered from, in essence, depression. There is a medical certificate provided by a general practitioner. That certificate does record a "medical condition". It is, with respect, a very compressed statement from the medical practitioner, but I do not doubt that in the circumstances of this particular case the applicant found himself in a situation where it was difficult because of extreme disappointment in the outcome to focus upon the responsibilities set out in the Rules of Court for the filing of a notice of appeal as of right. I accept that this might be termed a form of depression. 9 Recognising this, so I thought, the Minister did not focus upon the adequacy of the explanation in his submissions, but rather upon the prospective merits of the appeal. 10 Before turning to those merits, I should record that litigants in person should not expect that rules which exist for all litigants in order to ensure consistent and efficient procedural fairness will be uncritically adapted because of an absence of legal representation. A number of judges of this court, myself included, have expressed agreement with observations in this regard made by Kay LJ with whom Munby and Lewison LJJ agreed in Tinkler v Elliott [2012] EWCA Civ 1289 at [32] concerning the application of Rules of Court to litigants in person. It is just that, in the particular circumstances of this case, the applicant has provided an adequate explanation for the delay. 11 I turn then to the prospective merits. The proposed grounds of appeal reflect the applicant's particular, if incomplete, understanding of English. They are expressed in this way: 1. Honorable Judge (Mr. Smith) Erored to find fact of Juridictional Error by tribunal by not allowing applicant to submit further Evidences. 2. FCC decision No. 25 page 8 Not considering the submission in The Second Category as it clear effect to the visa decision. I would like to present oral arguments in support of appeal grounds. [Errors in original] 12 Those grounds are not, with respect, incapable of understanding, nor are they meaningless. 13 The difficulty about the first ground is that the applicant seeks to challenge what, in essence, was a discretionary value judgment made by the Tribunal about whether or not to grant the adjournment which the applicant sought. 14 As the learned Federal Circuit Court judge correctly apprehended, such discretionary value judgments are not unexaminable and may in the circumstances of a particular case be attended with jurisdictional error of the kind found in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li). So the proposed ground of appeal seeks to find error in the way in which the Federal Circuit Court disposed of the challenge to the Tribunal's decision in effect alleging an unreasonable refusal of an adjournment. 15 The conclusion reached by the Federal Circuit Court judge was that in the prevailing circumstances the refusal was not unreasonable. The test, of course, was not whether his Honour, had he been faced with the adjournment application, would have granted it. The test is the more stringent one of unreasonableness as described in Li's case. 16 The application for review was made shortly after the adverse decision by the Minister's delegate. Many months thereafter elapsed before the Tribunal hearing. Before the Tribunal, there was no formal onus of proof, rather it was for the applicant to advance his case with such supporting documents as he was able to provide: see in this regard the discussion in the joint judgment of Flick and Perry JJ in Sullivan v The Civil Aviation Authority (2014) 226 FCR 555; (2014) 141 ALD 540; [2014] FCAFC 93. So the commencement of the opportunity to advance the case was on and from the lodgement of the application for review. 17 The Tribunal's reasons reflect a value judgment that the applicant had had sufficient time. In submissions today, the applicant made the quite understandable point that supporting documents from Pakistan are not readily obtained. The difficulty about that is that the submission really goes to a factor concerned with the relative merits, on the facts, of the request that he made for "appropriate time" to obtain the supporting documents. His written request of the Tribunal, made in a document lodged at the time of the hearing and under the heading, "Additional Information" (Court Book, page 198), made reference to an arrest warrant issued at some stage, "[a]fter my escape from the country", which was later ordered to be advertised showing him as, "Wanted". The applicant stated that the additional information for which he sought additional time "may include", an "Arrest Order" and a "Warrant Order". There was nothing to indicate that such documents had only issued after the time when the Tribunal had, by its letter of 9 December 2014, invited the applicant to attend a hearing on 29 January 2015. 18 The application for review was lodged with the Tribunal on 31 March 2014. The applicant's "escape" necessarily occurred prior to his arrival in Australia on 24 June 2013. On the information which it had, the Tribunal was entitled to conclude that the applicant had had many months at least to secure copies of these documents. It is difficult in these circumstances to see that he has any prospect of successfully challenging the conclusion in the Federal Circuit Court that the refusal of an adjournment of the hearing so as to allow him time to obtain these documents was unreasonable. 19 The second ground seeks to challenge a refusal on the part of the learned Federal Circuit Court judge to have regard to what the applicant termed the "second part" of supplementary written submissions lodged by him with that court after the conclusion of oral argument. That court had made directions for the filing by the parties of supplementary written submissions on the subject of whether the Tribunal's refusal to adjourn had been unreasonable (Reasons for Judgement, paras 24 and 25). The applicant, in his later written submissions, addressed this subject. He also, gratuitously, added submissions concerning the relative factual merits of his claim. It is these which constitute the "second part" to which the proposed ground of appeal refers and which the court below declined to have regard. 20 In so doing, his Honour cited the following observation made by Mason J (as his Honour then was) in Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 258 (Carr v Finance Corporation): ... The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions. Having so done, his Honour referred to numerous applications of these observations, including those made in the context of submissions that went beyond a grant of leave (Reasons for Judgement, paras 25 and 26). 21 The reference by the learned Federal Circuit Court judge to Carr v Finance Corporation and the other authorities he mentioned was, with respect, apt. They admit of no special exception in relation to a litigant person. His Honour's refusal to have regard to this "second part" entailed no denial of procedural fairness to the applicant. It is, perhaps, understandable but nonetheless erroneous that a litigant person unfamiliar with court procedure might think otherwise. The proposed ground has no prospect of success. 22 Thus, even though there is an adequate explanation for the delay in the filing of a notice of appeal, the prospective merits of the proposed appeal are not such as to warrant the granting of an extension of time. Accordingly, the application is dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 7 March 2016