SZWDE v Minister for Immigration and Border Protection
[2018] FCA 368
•20 March 2018
FEDERAL COURT OF AUSTRALIA
SZWDE v Minister for Immigration and Border Protection [2018] FCA 368
Appeal from: Application for extension of time: SZWDE v Minister for Immigration and Border Protection [2017] FCCA 422 File number: NSD 497 of 2017 Judge: KATZMANN J Date of judgment: 20 March 2018 Catchwords: MIGRATION – application for extension of time to appeal – where alleged that the Refugee Review Tribunal failed to consider the applicant’s claims and wrongly characterised the social group to which he claimed to belong – whether discretion to extend time should be exercised Legislation: Federal Court of Australia Act 1976 (Cth), s 37M
Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 65, 91R
Federal Court Rules 2011 (Cth), r 36.03
Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389; 73 ALD 321; 77 ALJR 1088
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129
Date of hearing: 27 February 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr C Robertson of DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 497 of 2017 BETWEEN: SZWDE
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
20 MARCH 2018
THE COURT ORDERS THAT:
1.The application 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
The Minister for Immigration and Border Protection has the power to grant visas to non-citizens. If, upon receipt of a valid application, he is satisfied that the criteria for the grant of the particular visa have been made out, then he is bound to grant it; otherwise he is bound not to: Migration Act 1958 (Cth), s 65. The applicant in the present case is a Sri Lankan national, who unsuccessfully applied to the Minister for a protection visa, claiming to fear persecution in his country of nationality on several grounds. The Minister, through his delegate, refused the application. The Refugee Review Tribunal, the functions of which are now performed by the Administrative Appeals Tribunal, affirmed the Minister’s decision. The applicant was unable to persuade the primary judge that the Tribunal had committed jurisdictional error, the only basis upon which he could have obtained the relief he sought. He is understandably disappointed with the outcome but he failed to file a notice of appeal within time.
The Federal Court Rules 2011 (Cth) prescribe a 21 day period within which to lodge an appeal. That period runs from the date that judgment is pronounced or the order is made. But the Court has the power to extend the period. See r 36.03. The question here is whether the Court should exercise that power.
Like any power, the power to extend time to appeal must be exercised judicially and, in accordance with the terms of s 37M of the Federal Court of Australia Act 1976 (Cth), in the way that best promotes the overarching purpose of the civil procedure provisions, namely, the just resolution of disputes as quickly, inexpensively and efficiently as possible. The factors the Court may take into account are not specified. Generally speaking, the Court has regard to the length of the delay; the explanation, if any, for the delay; whether the other party or parties would be prejudiced if an extension of time were granted; and, above all, the apparent merit of the proposed appeal. Where the delay is not lengthy and has been satisfactorily explained and where there is no prejudice, the Court will usually grant relief provided that the applicant can demonstrate that he or she would have a reasonably arguable case on the appeal.
In the present case the delay is in the order of three weeks. The Minister, the only active respondent, does not claim to be prejudiced by it. In an affidavit filed in support of his application, the applicant offered an explanation for the delay.
In his affidavit the applicant said that he had injured his hand at work and had been suffering considerable post-operative pain requiring further treatment. He also stated that the injury had “affected” him “psychologically”. He asserted that his “medical difficulties” had “impeded” his proper attention to his legal matters. He did not explain why or how. Annexed to the affidavit was a Rehabilitation Progress Report, prepared by a rehabilitation counsellor, dated 10 March 2017, five days before the time to file the notice of appeal expired. It records that on 10 September 2016 the applicant sustained a crush injury to his left hand in the course of his employment, that he was referred to rehabilitation on 15 February 2017 — precisely one week before the hearing of the application in the Federal Circuit Court — and that he was unfit for any kind of work from 6 March 2017 until 3 April 2017. It notes that he complained that he had had no money for nearly three months and, due to his disability, he was “really depressed” and seeing a psychologist. The applicant reported to the counsellor that his left hand had been painful while he wore a calliper brace to straighten his fourth proximal finger that sits at a 90 degree angle due to scar tissue adhering to a tendon. The counsellor confirmed his advice that he was undergoing regular hand therapy at Concord Repatriation General Hospital and was awaiting further surgery to release scar tissue from the tendon. The counsellor noted that the applicant’s treating plastic surgeon had arranged for his name to be placed on the hospital’s three month waiting list. In the meantime the counsellor recommended that the applicant attend hand therapy two to three times a week. The counsellor had made contact with the applicant’s psychologist but had not yet received a report.
At the hearing the applicant tendered some additional documents which added little to this evidence. They included a discharge report from Concord Hospital which detailed the nature of the surgery in September 2016. They did not include a report from the psychologist, the surgeon, or the hand therapist. They were not directed to any difficulty the applicant might have had in preparing his notice of appeal or lodging it within time.
This evidence, though incomplete, does provide some insight into why the applicant might have had difficulty lodging his appeal within time. I accept that at the relevant time the applicant was in pain and depressed. His evidence on this question was not challenged. It is reasonable to infer, as I do, that his medical condition did interfere with his capacity to prepare and lodge his notice of appeal, if for no other reason than he was preoccupied by it. Notwithstanding the Minister’s submission to the contrary, if the applicant had a reasonably arguable case, I would not hold the deficiencies in the evidence against him. The problem for the applicant, however, is that he does not.
The draft notice of appeal annexed to the applicant’s affidavit contains a single ground; the application for extension of time contains two. At the hearing the applicant indicated he wished to pursue the two set out in his application.
The first proposed ground reads:
The court erred in not finding that the Tribunal committed an error of jurisdiction by failing to consider the applicant's membership of a particular social group namely a young man from the North East of Sri Lanka who left the country illegally.
This picks up ground 1 of the application before the court below which I take to be the same grievance. That took the following form:
The Tribunal committed jurisdictional error and denied the Applicant procedural fairness when it failed to consider his membership of a particular social group.
The particulars defined the group (without alteration) as one “with attributes such young men from North/East of Sri Lankan who left illegally”, asserted that the Tribunal had “not made any assessment of a particular social group claim”, and stated that the Tribunal had failed “to properly identify, assess and address” the risk of harm to the applicant on this basis.
The applicant filed no submissions in support of his application. At the hearing, when he was invited to speak to this ground, he said that he wished to reiterate that the court failed to find that the Tribunal made a mistake since it failed to find that, as a young Tamil from the northeast of Sri Lanka, he would be subjected to mistreatment if he returned because he had left the country illegally. When I asked him what mistake the Tribunal had made he said he could not remember and that he had forgotten everything, claiming to have memory problems. He also confirmed what the Tribunal had recorded, namely that he hailed from Puttalam. Puttalam, as the Tribunal noted, is in the northwest (not the northeast) of Sri Lanka.
The Tribunal is not required to consider a case that is not expressly made or does not arise clearly (or squarely) on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60]–[61].On the other hand, a failure by the Tribunal to consider a “a substantial, clearly articulated argument relying upon established facts”, whether because of a misunderstanding or otherwise, is a jurisdictional error; it is regarded as a constructive failure to exercise the jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389; 73 ALD 321; 77 ALJR 1088 at [27] and [32] (Gummow and Callinan JJ), [87] (Kirby J), [95] (Hayne J). In NABE at [55] the Full Court described it as “a failure to carry out the review required by the Act”. It will also amount to a denial of natural justice (or procedural fairness): Dranichnikov at [24] (Gummow and Callinan JJ) and [95] (Hayne J).
In Dranichnikov the High Court (Gleeson CJ dissenting) held that the Tribunal had “wrongly thought” that the social group to which the applicant belonged for the purpose of deciding whether he had a well-founded fear of persecution because of his membership of that group was “businessmen” when his contention was that he was a member of a more limited group, namely businessmen in Russia who publicly criticised law enforcement authorities for failing to take action against crime or criminals.
In this case, however, on the material before the Court there appears to be no basis for saying that the Tribunal misunderstood the particular social group to which the applicant claimed to belong or that it failed to consider his claim to membership of a social group. Furthermore, this was not an instance of the Tribunal failing to make a finding on “a substantial, clearly articulated argument relying upon established facts”.
The only materials before the Court describing the applicant’s claims were the Tribunal’s decision record and the judgment of the court below. Those documents were annexed to an affidavit filed on behalf of the Minister. The applicant did not supplement them with any others. In these circumstances, there is no basis to infer that the account of the applicant’s claims given by the Tribunal is inaccurate or unreliable.
The Tribunal said (at [11]) that the applicant claimed to fear persecution in Sri Lanka on the basis of his Tamil ethnicity and as a member of a particular social group, which it characterised as “returning failed asylum seeker[s]”. It said that the applicant’s claim was that he would be perceived as having an opinion that was opposed to the Government or in favour of the LTTE (Liberation Tigers of Tamil Eelam) because he had left Sri Lanka illegally. It also reported that the applicant claimed to fear harm because of the activities and associations of one of his brothers (K), which were said to have included marriage to a woman whose family had LTTE connections.
The Tribunal dealt with the applicant’s claim to fear persecution as a failed asylum seeker who had left Sri Lanka illegally at [61] of its reasons.
The primary judge held that the Tribunal had considered the applicant’s claim to be a member of the group of failed asylum seekers. Her Honour observed that the Tribunal confirmed with the applicant that the basis of his claim was that he was a Tamil who, if he returned to Sri Lanka, would be a failed asylum seeker with an imputed political opinion of being opposed to the Sri Lankan government. Her Honour said that there was no indication of a claim based on any particular geographical origin, except for “a suggestion” that the applicant would be imputed with a connection to the LTTE because he was a Tamil from a particular part of Sri Lanka. That claim, her Honour said, the Tribunal considered and rejected because it considered that the applicant did not have the attributes which would lead to such an imputation.
The applicant did not point to any error in the primary judge’s reasoning.
The second proposed ground of appeal is in the following terms:
The court erred in not finding that the Tribunal misdirected itself or asked itself the wrong question with respect to [the applicant’s] background as a Tamil.
The nature of the court’s error was not identified, nor that of the Tribunal. No particulars were given. That said, the foreshadowed ground appears to relate to ground 2 of the application in the court below, which read:
[The Tribunal] erred in misdirecting itself and/or asking itself the wrong question in regards to the ethnic background as a Tamil claim.
On that occasion, some particulars were provided. The Tribunal was said to have “only considered the separate claim of imputed political opinion that he is opposed to the Sri Lankan government because he left illegally” and failed to consider his claim that he faced “a real chance of serious or significant harm in Sri Lanka due to his ethnic background as Tamil”. I interpolate that the reference to “serious … harm” picked up one of the conditions without which the refugee criterion (s 36(2)(a) of the Migration Act) could not have been satisfied (see s 91R) and the reference to “significant harm” picked up one of the conditions for the grant of the visa based on the complementary protection criterion set out in s 36(2)(aa) of the Act. The alleged error was said to be found in [60] of the Tribunal’s decision record.
The primary judge rejected this ground at [57]–[59] and I am unable to discern any arguable error in her reasoning.
In paragraph [60] of the decision record the Tribunal merely touched on the applicant’s Tamil ethnicity. Its focus was upon his alleged imputed political opinion. But this was not the only reference in the decision record to the applicant’s ethnicity. The Tribunal went on to consider his claim to protection on the basis of his ethnicity (at [61]-[63], [67]-[69], and [75]). The substance of its conclusion, as the primary judge pointed out, was that the independent country evidence (UNHCR eligibility guidelines and reports from the Department of Foreign Affairs and Trade) only indicated that Tamils with actual or perceived links to the LTTE were at risk and it found that the applicant had no such “risk profile”.
Unless error can be shown in the judgment under appeal, the appeal must fail: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11]. The applicant has been unable to identify any arguable error. In these circumstances, it would not only be contrary to the overarching purpose of the civil procedure provisions to grant an extension of time to enable the applicant to appeal, it would also be futile. Consequently, the application should be dismissed. Costs should follow the event.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 20 March 2018
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