FEDERAL COURT OF AUSTRALIA SZUXX v Minister for Immigration and Border Protection [2018] FCA 253 Appeal from: Application for extension of time: SZUXX v Minister for Immigration and Border Protection [2017] FCCA 2346 File number(s): NSD 1582 of 2017 Judge(s): THAWLEY J Date of judgment: 12 March 2018 Catchwords: PRACTICE AND PROCEDURE – application under r 35.05 of the Federal Court Rules 2011 (Cth) for an extension of time to appeal a decision of the Federal Circuit Court – whether application should be granted – whether adequate explanation for delay – whether appeal grounds have merit Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 424A, 424AA Federal Court Rules 2011 (Cth) r 36.03, 36.05 Cases cited: COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 SZKLO v Minister for Immigration and Citizenship [2008] FCA 735; 247 ALR 582 SZUJJ v Minister for Immigration and Border Protection [2017] FCA 137 Date of hearing: 6 March 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 47 Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondents: Mr J Pinder of Minter Ellison ORDERS NSD 1582 of 2017 BETWEEN: SZUXX Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: THAWLEY J DATE OF ORDER: 12 March 2018 THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the first respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THAWLEY J: 1 On 12 September 2017, the applicant filed an application under r 35.14 of the Federal Court Rules 2011 (Cth) for an extension of time and leave to appeal from a decision of the Federal Circuit Court delivered on 1 February 2017. The application should have been made under r 36.05. The applicant does not need leave to appeal, but does need an extension of time. The parties have proceeded on the basis that the application is made under r 36.05. 2 The Federal Circuit Court dismissed an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) of 17 July 2014. The Tribunal had affirmed a decision made by a delegate of the First Respondent on 13 August 2013 not to grant the applicant a Protection (Class XA) visa. 3 The applicant filed the application for an extension of time 202 days outside of the 21-day appeal period provided by r 36.03 of the Federal Court Rules 2011 (Cth). In an affidavit affirmed on 11 September 2017 and filed together with the present application, the applicant noted he was unrepresented and provided the following explanation for his failure to file a notice of appeal within the required period: 4. Then, I challenged this decision and filed an application for a review with the Administrative Appeals Tribunal and this tribunal finalised the application on 17 July 2014. 5. Afterwards, I filed an application with the Federal Circuit of Australia. But the court provided an order not a judgement. As such I was waiting for the judgement to file an appeal with the Federal court. Gradually I was frustrated a lot and I went Federal court registry on 31 August 2017 to ask about my judgement and the registry said to me "we do not have any judgements". 6. Afterwards, on 7 September 2017 again I attended the Registry and tried to file an application to obtain judgement but the above registry did not take my application. 4 The application filed on 12 September 2017 contains three grounds in support of the application for extension of time, together with four grounds of appeal contained in an annexed draft "Notice of appeal from the Federal Circuit Court of Australia". 5 While the first respondent conceded in written submissions that no prejudice would arise if the applicant were granted an extension of time in which to file an appeal, the first respondent submits that the application should be dismissed due to the length of the delay, the "unsatisfactory" nature of the applicant's explanation for the delay, and the fact that, should an extension be granted, the proposed draft appeal grounds have no reasonable prospect of success. BACKGROUND 6 The applicant is a citizen of Bangladesh who arrived in Australia on 11 October 2012 and applied for a protection visa on 29 October 2012, alleging that he feared persecution in Bangladesh at the hands of the Awami League due to his political opinions and activities, and the fact that his late father was a well-known union leader and President of a local branch of the Bangladesh National Party (BNP). 7 The applicant claimed to have been involved in the student wing of the BNP, the "Chattra Dal", since 2001, including as an executive member of the district Chattra Dal committee from 2003 to 2012, when he left Bangladesh. He claimed that he was regularly threatened by the Awami League and attacked on two occasions, on 21 July 2009 and 25 October 2011. He claimed that the Awami League burned down his department store in July 2012. TRIBUNAL 8 The applicant appeared before the Tribunal on 2 July 2014 and 10 July 2014 to give evidence and present arguments in respect of the delegate's decision to refuse the visa application. The hearing was conducted with the assistance of an interpreter and the applicant was represented by his registered migration agent. 9 The Tribunal provided reasons for affirming the delegate's decision not to grant the applicant a Protection visa. The Tribunal's reasons are summarised in the decision of the Federal Circuit Court of Australia (FCCA) at [9] (by reference to paragraph 6 of the Minister's submissions to that court): The Tribunal set out the applicant's claims, what occurred before the delegate and the Tribunal, and country information it considered relevant. The Tribunal then came to assessing the applicant's claims and rejected them on the basis of adverse credibility findings. In particular, the Tribunal made the following key findings: (a) he would not have maintained his position in the Chattra Dal after ceasing to be a student in 2003; (b) he failed to disclose his attempts to go to the UK; (c) the documents he provided in support of his claims were 'highly suspect in a number of ways' [namely, they were dated in the period immediately before the Tribunal hearing, were replete with spelling errors and two identical letters from the same author were placed on two separate letterheads. Further, the newspaper articles provided displayed clear signs of alteration and the date of the alleged burning of the applicant's shop in one of them was at odds with the date provided by the applicant]; (d) he delayed leaving Bangladesh and making an application for a protection visa and was able to leave Bangladesh without difficulty; and (e) his failure to 'articulate policies or elements of the BNP platform' supported the conclusion that he was not a member of the Chattral Dal. 10 The Tribunal's reasons included the following: 64. The applicant was asked how he maintained a position in the Chattra Dal given that he ceased being a student in 2003. He responded that it was a general custom that even after ceasing to be a student one remains in either the Chattra Dal or Chattra League. He had the intention of going to the main party and to be elevated to a higher position but did not. … 85. The applicant was asked to comment on the delegate's overall conclusion that the applicant was not affiliated with the BNP and that he was not at risk, did not have a subjective fear and is not of interest to anyone in Bangladesh. He indicated that Bangladesh is his country and that everyone wants to live in their own country as does he and that he did not want to leave but had no alternative as he was beaten and threatened, feared for his life, knew Australia has humanitarian values and faces a risk to his life at the hands of the RAB and police as well as the Awami League. … 166. The applicant claimed to have been an office holder in the Chattra Dal as organising secretary of the branch in his college for many years from 2001 despite ceasing study in 2003 after failing his examinations, yet maintained his position as a student leader and being promoted to the district level after ceasing study. Despite the applicant's claims to have remained an office holder in the Chattra Dal, the Tribunal rejects that he would have held this position until his departure having ceased being a student in 2003. It does not accept that this is a general custom as it runs counter to common sense. The Tribunal does not accept that the applicant was organising secretary given its adverse credibility finding and lack of corroboration and rejection of the corroborating documents tendered by him. … 168. The applicant failed to disclose his attempts to go to the United Kingdom in 2007-8 and against in 2010. He explained this by testifying that he feared being deported to Bangladesh if he disclosed this fact. The Tribunal rejects this explanation and finds that the applicants [sic] failure to disclose his prior visa applications further undermines his credibility. … 169. The Tribunal next considered the documents presented by the applicant in support of his claim. The Tribunal at the second hearing reviewed the documents with the applicant in some detail. The documents were highly suspect in a number of ways. The letters were largely dated in the immediate period in advance of the hearing. They were replete with spelling errors, including on the letterhead of the documents which were purportedly all received together from the applicant's brother in Bangladesh. The letters from the same author were identical in content dated one day apart and placed on two separate letterheads. The news articles displayed clear signs of alteration. They were all claimed to have been obtained by the applicant and kept together at home in Bangladesh. The date of the alleged burning of the applicants [sic] shop in one article was at odds with the date the applicant first testified that the event occurred. Further the Tribunal notes country information indicating that fraudulent documents are readily available in Bangladesh. The Tribunal finds given these factors that the documents submitted by the applicant are not genuine or reliable and gives them no weight. Further, given the applicants [sic] willingness to file fraudulent documents in support of his claims, it finds that his credibility is further very seriously undermined, and that he is prepared to say and do anything in order to achieve a migration outcome. It rejects his claim that he will be politically outspoken in Bangladesh and that he will come to the adverse attention of potential agents of harm for this reason. … 170. The applicant delayed in departing Bangladesh and delayed lodging his protection visa after arriving here. He explained that the paperwork to obtain a visa took a long time, and less importantly he had to arrange accommodation for his wife whom he has recently married. … 171. The Tribunal further notes that the applicant was issued a Bangladeshi passport in 2012 without difficulty and a police certificate and had no problems leaving Bangladesh. It finds that the applicant is not of adverse interest to authorities in Bangladesh. 11 The Tribunal affirmed the decision of the delegate having concluded that the applicant was not a person in respect of whom Australia had protection obligations under either s 36(2)(a) or 36(2)(aa) of the Migration Act. FEDERAL CIRCUIT COURT 12 On 15 August 2014, the applicant filed an application in the FCCA for judicial review of the Tribunal's decision. The application was subsequently amended on 14 November 2014. 13 Ground one of the amended application claimed that the Tribunal erred in misunderstanding and incorrectly assessing the applicant's claims for protection: see FCCA reasons at [11]. In particular, the applicant claimed that the Tribunal: (1) had misunderstood his claims; (2) had ignored documents which the applicant placed before it; and (3) took into account an irrelevant consideration (though, as the primary judge noted at FCCA [15], no specific irrelevant considerations were identified by the applicant and none were "independently apparent" in the Tribunal reasons). 14 In dealing with this ground of review, the primary judge noted that the applicant was inviting the court to engage in an impermissible merits review of the question of his entitlement to protection under ss 36(2)(a) and 36(2)(aa) of the Act. Noting the court's limited role in reviewing for jurisdictional error on the part of the Tribunal, the primary judge nevertheless considered and dismissed the applicant's particular claims in relation to this ground of review: at [13]-[15]. 15 Ground two claimed that the applicant was denied procedural fairness on the following grounds: (1) the Tribunal made a "pre-occupied decision", which the primary judge understood to be an allegation that the Tribunal had made up its mind before it undertook the review, or one of actual bias on the part of the Tribunal; (2) the Tribunal failed to provide the applicant with particulars of information which it was required to put to him under s 424A and 424AA of the Act; and (3) the Tribunal "made an error in ignoring the materiality of the case", which the primary judge considered to be meaningless as expressed and which he noted was not further advanced during the course of orals submissions. 16 The FCCA ultimately dismissed the application for judicial review, finding that the applicant had failed to demonstrate jurisdictional error on the part of the Tribunal. THE PRESENT APPLICATION 17 As the first respondent noted by reference to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 at [18]-[23], consideration should be given to the following factors in determining whether to grant an extension of time: (1) the extent of the delay; (2) the applicant's explanation for the delay; (3) any prejudice the respondent might suffer because of the delay; and (4) the merits of the applicant's proposed appeal. 18 Those factors are not necessarily exhaustive and each case turns on its own facts. However, they are sufficient for present purposes. Extent of the delay 19 The applicant did not bring the present application until 223 days after the orders were made and the decision of the FCCA was delivered ex tempore on 1 February 2017. This is a substantial delay, requiring an extension of 202 days in which to appeal, which weighs against granting an application for extension of time. Explanation for the delay 20 In broad terms, I understand the applicant's explanation for his delay in bringing the present application to be that he believed the 21-day appeal period began once the primary judge delivered a written judgment in the proceedings. The applicant claims that, as a self-represented litigant, he did not understand that the orders and ex tempore reasons delivered by the primary judge on 1 February 2017 constituted the final judgment of the FCCA. He confirmed during submissions on the appeal that he did not receive a written copy of the judgment until after he had filed his application for extension on 12 September 2017. He approached the registry in connection with obtaining a written judgment on 31 August 2017 and 7 September 2017. 21 The first respondent submitted that this explanation is unsatisfactory. The first respondent submitted that an interpreter was present at the Federal Circuit Court hearing at which the primary judge made orders dismissing the application for review and when the court provided ex tempore reasons for its decision. Although the submission may well be factually correct, it was not supported by evidence and in those circumstances I do not have regard to it. 22 In my view, the explanation for the delay is not sufficient. The applicant's case is that he did not file his appeal within time because he was waiting for the written judgment. However, he filed the application for an extension of time before the written judgment was received by him. He did not make clear why he did this if he thought the time in which to appeal began only when he received a written judgment. In paragraph 5 of his affidavit, the applicant notes that he realised orders were made by the Federal Circuit Court and it is clear that he is referring to the orders made at the conclusion of the hearing before the Federal Circuit Court on 1 February 2017 when ex tempore reasons were given. His first attempt at obtaining the written judgment was on 31 August 2017, some months after the hearing and ex tempore judgment and orders. The applicant bears the onus of proving a satisfactory explanation. This has not occurred. Given the extent of the delay, the lack of explanation weighs heavily against the grant of an extension of time. Proposed appeal ground 23 The appeal grounds on which the applicant proposes to rely are set out in the draft notice of appeal accompanying the application for an extension of time. Further, the application filed on 12 September 2017 identified three "grounds of application" which might be taken to be proposed grounds of appeal. I deal below with the grounds in the draft notice of appeal and the grounds in the application. 24 At the hearing of the application for an extension of time, the applicant made oral submissions, assisted by an interpreter, and also relied on a written outline of submissions which had been filed on 20 February 2018. Ground 1 of the draft notice of appeal 25 Ground 1 of the draft notice of appeal is as follows: The appellant failed to attend the natural justice pursuant to section 430(1)(c) and (d) of the Migration Act 1958, which was not considered by the trial judge. 26 This ground was not put to the Federal Circuit Court, though I will deal with it nevertheless. 27 Section 430(1) of the Act provides: Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based; and … 28 A failure to provide adequate reasons may give rise to an error of law. In SZKLO v Minister for Immigration and Citizenship [2008] FCA 735; 247 ALR 582 at [26] (SZKLO), dealing with the requirements of the reasons of a primary judge in exercising a judicial review jurisdiction, Flick J said: Whatever the ground of review, however, the reasons of the Federal Magistrates Court must be sufficient to explain to both the litigant and others the basis upon which that Court proceeded and the reasons why the application to review the decision of the Tribunal is either to be dismissed or why the decision is said to be wrong in law. Reasons do not adequately address the grounds of review sought to be resolved if the litigant – or this Court – is left to speculate as to what it was that the Federal Magistrate had in mind when he reached the conclusions that formed the final decision. 29 Further, the reasoning (or the inadequacy of it) may disclose that fundamental aspects of the case were not considered such that there was a constructive failure to exercise jurisdiction: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (DAO16) at [46]-[48] per Kenny, Kerr and Perry JJ; COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 at [37], [38], per Griffith J. 30 The applicant has not pointed to any inadequacy in the reasons of the Tribunal. In the course of the hearing of the application, the applicant went through subparagraphs (a) to (d) of the matters identified in the decision of the FCCA which summarised the Tribunal's findings (set out at paragraph [9] above) and paragraphs [64] and [85] of the Tribunal's reasons (set out at paragraph [10] above) and stated that he disagreed with some of the conclusions in those paragraphs and had tried to explain to the Tribunal his version of events. However, this merely showed disagreement with the conclusions rather than any inadequacy in the reasons. 31 This proposed ground of appeal has insufficient merit to warrant the granting of an extension of time in which to appeal. Ground 2 of the draft notice of appeal 32 Ground 2 of the draft notice of appeal is: The trial judge erred in considering the totality of this case and the appellant failed to obtain the judgement or reasons for the judgement from the Federal Circuit Court. 33 The asserted error that the primary judge did not consider the totality of the case is not made out. The primary judge dealt with the whole case put to him. The amended application to the FCCA contained two grounds. The primary judge set them out at [11]. He dealt with both of them. If the ground is intended to mean that the primary judge should have reviewed the whole of the Tribunal's decision so as to reach its own conclusions on the merits, then this ground must fail because the FCCA's role was strictly one confined to judicial review. 34 The fact that applicant did not receive written reasons for judgment is not a proper ground of appeal; it does not identify any error on the part of the primary judge: SZUJJ v Minister for Immigration and Border Protection [2017] FCA 137 at [30]. 35 This ground has insufficient prospects to warrant an extension of time. Ground 3 of the draft notice of appeal and ground 3 of the application 36 Ground 3 of the draft notice of appeal is: The trial judge erred in considering that the constructive failure of the Second Respondent in determining the claim of the appellant regarding comply of 424 and 424AA of the Act. 37 This ground is probably intended to refer to ss 424A and 424AA of the Act. 38 Ground 3 contained in the application is: The trial judge erred in considering that the constructive failure of the Second Respondent 39 The FCCA made the following observations at [18] and [19]: 18. The second element of the second ground of the application was that the Tribunal should have put certain matters to the applicant so he could respond to them or otherwise deal with them. That element of the second ground of the application appears to rely on ss.424A and 425 of the Act. It is not apparent that any information meeting the criteria of s.424A(1) existed in this matter, and so there was no such material which had to be notified to the applicant. 19. Consideration of the Tribunal's summary of the hearing it afforded the applicant discloses that it put numerous matters to the applicant, and asked him to address its concerns on a number of matters, such that he was well aware of the issues which would be determinative of his review. For these reasons, the denial of procedural fairness propounded in the third sentence of the second ground of the application is not made out. 40 The applicant has not identified any error on the part of the FCCA. The Tribunal complied with its procedural fairness obligations. The applicant was invited to two hearing before the Tribunal, both of which he attended with the assistance of his representative and a Bengali interpreter. The applicant has not identified any "information" which attracted any obligation under section 424A. The Tribunal's findings included adverse credibility findings based on its assessment of the applicant's claims and evidence. The Tribunal's reasons indicated that the applicant's credibility was discussed during the hearing. The Tribunal was not obliged to give the applicant a running commentary on its subjective appraisals or thought processes: SZBEL v Minister for Immigration and Multicultural and Ethnic Affairs (2006) 228 CLR 152 at [47]. Ground 4 of the draft notice of appeal and ground 2 of the application 41 Ground 4 of the draft notice of appeal is: The appellant submitted corroborative evidence in respect to the claim but it was ignored by the Second Respondent and the court below was not considered this issue. 42 Ground 2 of the application is: The trial judge erred in considering that the Second Respondent made an error in respect to the appellant corroborative evidences, which was ignored by the Second Respondent. 43 At the hearing of the application, the applicant did not identify any corroborative evidence which was ignored by the Tribunal. Rather, he stated that his complaint was that, although the Tribunal considered the corroborative evidence, it did not do so properly. The Tribunal considered the applicant's claims and evidence and made various findings and did so sufficiently – see, in particular: at [11], [17] and [47]. This ground of appeal has inadequate merit to warrant the granting of an extension of time in which to appeal. Ground 1 of the application 44 Ground 1 in the application is: The trial judge erred in considering the irreparable loss of the appellant due to his genuine fear of persecution upon returning Bangladesh. 45 It is not clear what this ground is intended to add, if anything, to the other grounds relied upon. The applicant has not identified a failure on the part of the FCCA which might arguably constitute an error which corresponds with the assertion made in this ground. 46 To the extent this ground was relied on in addition to the grounds identified in the draft notice of appeal, it has no realistic prospect of success should an extension of time to appeal be granted. Conclusion 47 In light of the inadequate explanation for the delay and the lack of prospect of success in the proposed grounds of appeal, an extension of time in which to appeal is refused, with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley. Associate: Dated: 12 March 2018