AAI18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 924
Federal Circuit and Family Court of Australia
(DIVISION 2)
AAI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 924
File number(s): MLG 5 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 8 November 2022 Catchwords: MIGRATION - application for extension of time – 83 day delay – whether delay “unwarrantable” by reference to explanation – discontinuance of application by first applicant – prosecution of application by remaining second applicant – template grounds – costs where partial order already made in relation to discontinuing applicant Legislation: Migration Act 1958 (Cth) ss 5J, 36, 477, 477A Cases cited: AJN16 v Minister for Immigration and Border Protection [2017] FCCA 2061
AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291
CYT16 v Minister for Immigration and Border Protection [2018] FCCA 2820
CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447
DJP16 v Minister for Immigration and Border Protection [2017] FCCA 1343
Gallo v Dawson (1990) 64 ALJR 458
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
MZZBM v Minister for Immigration and Citizenship [2013] FCCA 321
Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470
SZLHM v Minister for Immigration and Citizenship [2008] FCA 754
SZTDM v Minister for Immigration and Border Protection(No. 2) [2013] FCCA 2060
SZTSU v Minister for Immigration [2014] FCCA 1697
SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
Vella v Minister for Immigration and Border Protection (2015) 326 ALR 391
WZASS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 282 FCR 516
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 8 November 2022 Place: Sydney The Applicant: In person via Microsoft Teams Solicitor for the Respondents: Ms S Roberts of Mills Oakley ORDERS
MLG 5 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAI18
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
8 November 2022
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time made on 2 January 2018 is refused.
2.The second applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $2,066.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
Before me is an application for extension of time, pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act), which seeks to extend the time in which the applicant may seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 September 2017, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant, and her brother, Protection (Subclass 866) visas. By reference to the date of the Tribunal’s decision, any application to this Court was required to be made by 11 October 2017. Accordingly, the application, which was filed on 2 January 2018, was 83 days out of time.
The following background and summary of the matter is derived from the submissions of the first respondent, but does not appear to be in dispute.
The applicant is a female citizen of Malaysia who arrived in Australia on 23 October 2016 as the holder of an UD-601 Electronic Travel Authority visa (CB 80).
On 9 January 2017, the applicant and her brother (formerly the first applicant in this proceeding (AAG18)) applied for a Protection visa (CB 1-62). The applicant and her brother claimed to fear harm on the basis that:
(a)in 2016, they borrowed money from a money lender in Malaysia for the purpose of expanding the tailoring business run by them and their mother;
(b)after struggling to repay the loans fortnightly, repayments were changed to monthly, but the interest doubled;
(c)the applicants stopped making payments and she and her brother began to receive threats from the money lender that they would be beaten, and their family harmed;
(d)the applicant and her brother do not wish to return to Malaysia as they are still in debt, need longer to repay the money lender, and will live in fear of harm from the money lender if they were to return to Malaysia (CB 32 to 34 and 57 to 59).
On 25 May 2017, the delegate refused to grant the applicant and her brother the Protection visas. On the basis of country information about illegal money lending and law enforcement in Malaysia, the delegate was satisfied the applicant and her brother could avail themselves of effective protection measures from the Malaysian authorities and that they therefore did not meet ss 36(2)(a) or 36(2)(aa) of the Act (CB 79 to 87)
On 3 June 2017, the applicant and her brother applied to the Tribunal for a review of the delegate’s decision and gave the Tribunal copies of the delegate’s notification letter and decision record (CB 93 to 112). A particular Yahoo email address was given by the applicants for the purposes of receiving correspondence (Yahoo address).
On 5 September 2017, the applicant and her brother attended a hearing before the Tribunal, with the assistance of a Malay interpreter (CB 122 to 125).
On 6 September 2017, the Tribunal affirmed the decision to refuse to grant the applicant and her brother a Protection visa (CB 132 to 138). The applicants were notified of the decision on 7 September 2017 by email to them at the Yahoo email address provided (CB 127 to 128).
The Tribunal’s decision
The Tribunal found the applicant and her brother were generally consistent and spontaneous in their oral evidence, however considered their claims to have been threatened by a money lender to have been embellished and was not satisfied in the general credibility of the applicants’ claim to have a well-founded fear of persecution or a real risk of significant harm from the money lender on return to Malaysia (CB 136 at [22]).
The Tribunal accepted that the applicant and her brother had borrowed AU$6,000 from a money lender and had difficulty meeting loan repayments. However, the Tribunal not accept that the applicants and their family were threatened by the money lender (CB 136 at [23]).
Based on country information, the Tribunal found that if the applicant, her brother or their family were threatened by the money lender, effective assistance from police was available in Malaysia and the applicant and her brother would have approached the police for assistance (CB 136 at [24]).
Given the serious nature of the claimed threats, the applicants’ failure to seek assistance from the police led the Tribunal to have serious concerns about the credibility of this claim (CB 136 to 137 at [25]). In addition, the Tribunal had credibility concerns about the applicants’ claims on the basis that, if they were concerned about the money lender’s threats, they would have used the proceeds from selling some of their assets to repay the loan amount, instead of to pay for travel to Australia (CB 137 at [27]).
The applicants were unable to say how much money they now owed the money lender, and the Tribunal was not satisfied that the applicants continued to have a debt or had been threatened with harm for this reason (CB 137 at [28]).
Based on the above, the Tribunal did not accept the applicants were of any adverse interest to a money lender or anyone else in Malaysia and did not accept the credibility of their claims (CB 137 to 138 at [30]). The Tribunal did not accept that the applicants had a well-founded fear of persecution for any of the reasons set out in s 5J(1) of the Act, and on that basis did not satisfy ss 36(2)(a) or 36(2)(aa) of the Act and affirmed the decision under review (CB 138 at [33]).
Applications for judicial review
On 2 January 2018, the applicants filed the present application for an extension of time with this Court. The applicant is the second-named applicant in these proceedings, the first named applicant being her brother. The application was accompanied by an Affidavit in support which was purportedly made by both applicants on 2 January 2018. I received the Affidavit document as a submission, the content of which is as follows (errors in original):
According with my application the reason why I woul like to stay longer in this country is because this I’ve been hunting by loan shark and I need more time to get the money to payback…
On 3 October 2018, a Registrar of this Court made directions in the matter, which included a grant of leave to the applicants to file any amended application 28 days before the hearing, which was initially listed before another judge of the Court, before being placed in the central migration docket.
On 19 May 2020, the first applicant filed a Notice of Discontinuance in these proceedings. From submissions made by the applicant at the hearing on 8 November 2022, it appears that the circumstances of that discontinuance being filed was that the first applicant left Australia and returned to Malaysia. The second applicant, who made her own claims for protection albeit on similar grounds to her brother, wished to continue to prosecute the application for an extension of time and remains as the sole applicant in these proceedings.
On 18 May 2022, the applicant attended a telephone callover before a Registrar of the Court, following which the matter was placed in my docket. On 11 August 2022, I made orders for the further conduct of this matter and listed it for hearing on 8 November 2022. Among the orders was that the applicant file any amended application and evidence on or by 25 August 2022. No such material has been forthcoming, nor has the applicant filed any written submissions as ordered.
As noted earlier, by the originating application, the applicant seeks an extension of time in which to seek judicial review of the Tribunal’s decision. If so extended, the applicant seeks to raise the following two substantive grounds of review:
1.The member of the Tribunal failed to consider the provider reason of the situation I am facing.
2.The member of Tribunal against all the information I told them. Also the evidence I have submitted to them.
The applicant appeared before me today via the Microsoft Teams platform (as she was in Melbourne and the Court was sitting in Sydney), with the assistance of an interpreter in the Malay language, who was present in court. The Minister was represented by a solicitor. The connection appeared to be clear and without any technical difficulties. The parties and the interpreter did not appear to have any difficulty in understanding one another, nor engaging with the Court.
Section 477(2) of the Act gives the Court the power to extend the 35 day time limit if satisfied that it is necessary in the interests of the administration of justice to do so. Other than the interests of the administration of justice, there are no prescribed factors by s 477 or any other requirement which gives rise to mandatory considerations for consideration in determining whether to exercise the discretion to extend time: SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456 at 458 at [11] to [12] and 459 at [18], [19]; and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 to 40. However, the following factors usually arise for consideration:
(a)length of delay and explanation for it;
(b)any prejudice to the parties; and
(c)the merits of the grounds with the usual caution taken to ensure these are considered at an impressionist level: see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [609].
There will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”: Cf, Vella v Minister for Immigration and Border Protection (2015) 326 ALR 391 at 392, citing Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 474 [13] citing Gallo v Dawson (1990) 64 ALJR 458 at 459.
Section 477(2) of the Act is in relevantly identical terms to s 477A(2), which was recently examined by the High Court in Tu'uta Katoa (supra) at [39] to [41]. The power conferred by s 477(2) is unfettered except by the requirements of a written application in conformity with s 477(2)(a) and the Court's satisfaction that an order extending time “is necessary in the interests of the administration of justice”: see CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447 at 452 at [19]; WZASS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 282 FCR 516 at 522 to 523 at [29] to [33].
The focus of s 477(2) is not on the interests of the applicant, but the broader interests of the administration of justice, and allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low. The Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice: see Tu'uta Katoa (supra).
In such a case, a proper exercise of the power conferred by s 477(2) (or s 477A(2)) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion (see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130). The broad power in s 477(2) (or s 477A(2)) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time: Tu'uta Katoa supra.
The first respondent submitted that the length of the applicant’s delay in commencing these proceedings (83 days) is unwarrantable, which was submitted to be a sufficient basis upon which extension of time should be refused: see AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 at [57]. It was also argued for the first respondent that the materials filed by the applicant fail to establish any exceptional circumstances to warrant such a significant extension of time for commencing proceedings and the applicant’s explanation for the delay in commencing these judicial review proceedings is unsatisfactory.
During the hearing, I explained the factors listed at [21] above to the applicant and invited her to address them. Noting that the applicant had not filed any evidence explaining her explanation for the 83 day delay, I had each of the grounds for the extension of time, together with the two substantive proposed grounds of review, interpreted to her in turn, and the applicant was invited to speak to each of those grounds. In relation to those grounds, when asked what she wished to say, the applicant replied, “Nothing”.
When invited to make any general submissions that she wished, the applicant described the circumstances which led to the making of the visa application and also to the commencement of these proceedings. The applicant said that it was her brother who asked her to come to Australia, and that after their arrival they did not know anything about the visa, but someone told them to apply for it, and they followed that person’s advice. The applicant says that she followed her brother, that she did not know anything about it and that her brother was told by this person what to say.
As noted before, the applicant indicated that her brother has since departed Australia and returned to Malaysia. The applicant says that her brother left her here without any support. The applicant is now pregnant and her husband has also returned to Malaysia. The applicant said that she would like to have her “time here extended” because her due date is quite close. The applicant said that she would like to “have time extended” so that she could arrange documents for her baby and also make arrangements if she needed to leave Australia.
Explanation for delay
Dealing with the discretionary factors in relation to the application for an extension of time in turn, in terms of the length of the delay, being 83 days, the period is lengthy.
The Minister describes it as “unwarrantable”. That description can really only be applied once regard is had to the explanation for it. The only explanation proffered in documents by the applicant in relation to why the proceedings were not commenced in time is set out in the originating application (errors in original):
Because on that time I don’t have enough money to apply and today I find the right person to teach me for next step.
As noted, there is no Affidavit evidence or other material advanced in support of the above explanation.
To the extent that the applicant relies on a lack of funds as contributing to the delay in commencing the proceedings, it is well established that this is not an acceptable reason, for delay in and of itself: see DJP16 v Minister for Immigration and Border Protection [2017] FCCA 1343 per Judge Driver at [23], citing MZZBM v Minister for Immigration and Citizenship [2013] FCCA 321 per Judge Whelan at [27]; SZTSU v Minister for Immigration [2014] FCCA 1697 per Judge Manousaridis at [23] to [24]; and SZTDM v Minister for Immigration and Border Protection(No. 2) [2013] FCCA 2060 per Judge Barnes at [12].
The applicant has not explained whether or why she did not approach the Court for information about the availability of a fee waiver: see SZTDM (supra).
Further, to the extent that the applicant says that money was required in order to find “the right person” to teach the applicants the next steps, it is clear from the material in the Court Book that at the same time that the applicants were notified of the Tribunal’s decision, information which accompanied that notification, said that they could apply to the then Federal Circuit Court, but must do so within 35 days (CB 130).
From the applicant’s explanations given at the hearing, she appeared to suggest that the entire visa application and the review, together with the application to this Court, were dictated by and managed by her brother. However, the applicant made her own claims for protection (CB 56 to 61 and 66), and also attended the Tribunal hearing at which she gave evidence (CB 122 and 133 at [3]).
It is also clear that the applicant consciously elected to remain in these proceedings, even after her brother discontinued them in respect of himself. Accordingly, I cannot see that reliance by the applicant on her brother in pursuing this particular migration pathway is something that otherwise gives rise to a plausible explanation for why the application was not commenced within time. The applicant seems to have been a reasonably active participant before the Tribunal, as well as an active prosecutor of these proceedings. In my view, as against that explanation, the length of delay is extensive, and I accept the Minister’s description of it as being “unwarrantable” when regard is had to that explanation for delay. Accordingly, each of those factors weighs against time being extended.
Prejudice
In respect of prejudice, the first respondent concedes that he suffers no prejudice, other than costs, if time were to be extended, but says that the mere absence of such prejudice is not enough to justify an order to extend time: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [349]. The first respondent says that he should not be put to the burden and cost of additional litigation in circumstances where the grounds are without merit. In all the circumstances of this case, I will treat prejudice as being a neutral factor in relation to whether the interests of the administration of justice warrant time being extended.
Merits
In the present case, as I noted earlier, the applicant raises two grounds and has not availed herself of either of the two grants of leave to amend the originating application. The proposed grounds of review are template grounds and have been raised in relatively identical terms by other applicants in this Court who are of Malaysian origin and have filed in the Melbourne Registry: see AJN16 v Minister for Immigration and Border Protection [2017] FCCA 2061 per Judge Hartnett at [2] and CYT16 v Minister for Immigration and Border Protection [2018] FCCA 2820 per Judge McNab (as his Honour then was) at [2].
It is open to infer, and I do, that these grounds have been circulated by a person or persons within the Malaysian community for indiscriminate use in this Court. It is hoped that the applicant has not paid for the opportunity to use these grounds. However, given the explanation proffered by the originating application, together with what the applicant said at the hearing about her brother following the advice of a particular person, sadly I fear it may be the case. In SZLHM v Minister for Immigration and Citizenship [2008] FCA 754 at [35] to [36] Flick J said the following about the use by unrepresented litigants of template grounds:
[35] First, there is a self-evident difficulty if a ground which may have prevailed in one set of circumstances is sought to be transposed to different proceedings in which the ground is simply not apposite. The success of a particular argument in the circumstances of a particular case obviously does not mean that the same argument will always prevail and does not mean that the argument is even appropriate to be advanced in other proceedings.
[36] It may well be understandable that an unrepresented litigant may wish to call upon all possible arguments and that an unrepresented litigant may well lack the ability to discern whether an otherwise successful argument is even relevant to his own circumstances. Indiscriminate reliance, however, upon arguments transposed from other proceedings may simply provide false hope to the unrepresented. And indiscriminate reliance upon grounds divorced from the circumstances of the particular proceedings under consideration may well only serve to detract from such prospects of success as an application may otherwise present.
However, despite being template grounds, and even if it was unscrupulous for whomever drafted them to proffer them to the applicants for generic use, the grounds must still be considered for the purpose of assessing whether, when applied to the facts of this case, they are sufficiently meritorious at an impressionistic level to warrant their consideration on a final basis, such that it would be necessary in the interests of justice to extend time in order to enable that to occur.
Proposed ground 1 asserts that the Tribunal failed to consider the reasons provided about the situation the applicant faced in Malaysia. A full and contextual reading of the Tribunal’s decision indicates that there is nothing to suggest that there were any materials or explanations submitted by the applicants that were overlooked. The applicant seeks to equate her claims not being wholly accepted as the Tribunal failing to consider the reasons provided, then, in essence, this is simply an expression of dissatisfaction with the Tribunal’s findings and reasons.
The first respondent submits that the Tribunal properly addressed and discussed with the applicant and her brother all aspects of their claims before reaching its decision (CB 136 to 138 at [21] to [29]. Considered at an impressionistic level, the decision demonstrates that the Tribunal considered all the matters raised by the applicants and that it provided detailed reasons for its decision. The applicant has not pointed to anything arising from the decision which suggests otherwise. In my view, ground 1 is not sufficiently arguable such that it would warrant time being extended to be considered on a final basis.
Proposed ground 2 appears to take a similar stance and complains that the Tribunal “was against all the information and evidence submitted”. The ground is difficult to understand. If it seeks to allege a closed mind akin to bias, then the applicant must clearly allege and demonstrate it. If it seeks to complain about the weight given to evidence, then that is a matter exclusively within the purview of the Tribunal. However, it seems that the applicant’s core complaint, is again that her claim was not accepted. As above, this constitutes an impermissible attempt at merits review and would not, without more, go any way to raising an arguable error on the part of the Tribunal.
As noted in relation to ground 1, the Tribunal appears to have considered all the applicants’ claims and evidence, but ultimately was not have been satisfied that they were owed protection obligations. In my view, ground 2 is equally without sufficient merit, even at an impressionistic level, to warrant its consideration on a final basis. Accordingly, I am not persuaded that either of the proposed grounds of review have sufficient merit, even applying the low bar for that assessment, to warrant time being extended. Accordingly, this factor weighs against the time being extended.
Lastly, including by her submissions in reply, the applicant asked the Court to “extend time” because she is pregnant and needs to make certain arrangements. At a certain juncture the applicant also said that she wished to have time extended in order that she could “start from the beginning” in relation to a visa process. If the applicant wished to regularise her migration status or pursue other migration pathways, then she ought to have done so concurrently with her pursuit of these proceedings. There is nothing in relation to the application of extension of time that would warrant time being extended simply for that process to occur.
To the extent that the applicant also asked for time to be extended, meaning time for her to stay in Australia, as I explained to the applicant, an application for extension of time is for the time in which the application could validly be made in the Court’s jurisdiction to be extended, not the time for the applicant to stay in Australia. While I can sympathise with the fact that the applicant finds needing to regularise her migration status to be inconvenient given the imminent birth of her child, it is not a factor which could relevantly go towards whether or not time should be extended apply to this Court for judicial review.
Having regard to the relevant factors which have been considered and weighed either neutrally or against time being extended, overall, I find that it is not necessary in the interests of the administration of justice that time be extended. Accordingly, the application made under s 477(2) of the Act on 2 January 2018 will be dismissed, and I so order.
Costs
Consequent upon the dismissal of the application, the Minister sought an order for costs fixed in the sum of $2,066. When asked to speak to whether or not any costs order should be made, and if so in what amount, the applicant said she had nothing to say. The amount is comprised of the scale amount for an extension of time hearing, which is an interlocutory hearing under the Court’s hearing scale, as at the time that the proceedings were commenced at the beginning of 2018, less the amount in respect of which the Minister has already been granted a costs order consequent upon the first applicant having discontinued his proceedings in April of 2020.
I am of the view that that is entirely reasonable, and that the Minister ought be commended for taking that stance, which I consider to be in accordance with his model litigant obligations. In all the circumstances of this case, I am satisfied that a costs order should be made. I am further satisfied, as I have just said, that the amount sought is eminently reasonable.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 25 November 2022
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