ABO15 v Minister for Immigraiton

[2016] FCCA 2739

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABO15 & ANOR v MINISTER FOR IMMIGRAITON & ANOR [2016] FCCA 2739

Catchwords:
MIGRATION – Application to extend time for the filing of an application – filing application at least 7 months out of time – no reasonable explanation for delay – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.477(2), 477(2)(b)

Hunter Valley Developments v Cohen Pty Ltd [1984] FCR 344

First Applicant: ABO15

Second Applicant ABP15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 375 of 2015

Judgment of: Judge McNab

Hearing date: 27 September 2016

Date of Last Submission: 27 September 2016

Delivered at: Melbourne

Delivered on: 27 September 2016

REPRESENTATION

The applicant in person

Counsel for the Respondent: Ms Latif

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application for extension of time be refused.

2. The applicant pay the first respondent’s costs fixed in the sum of $7206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 375 OF 2015

ABO15

First Applicant

ABP15

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX TEMPORE

1. By an application made by the applicants dated 27 February 2015,

   
   

   the applicants seek to challenge a decision of the Tribunal which was made on 27 June 2014.  Having regard to the time limits in which an application of this kind should be made, that application should have been filed on or before 1 August 2014.  The application was filed on

   
   

   27 February 2015, some six months and 26 days out of time.

2. Pursuant to section 477(2) of the Migration Act (“the Act”), the

   
   

   Federal Circuit Court may by order extend that 35 day period as the Federal Court considers appropriate if:

   a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the administration of justice to make the order;  and

   b)the Federal Circuit Court is satisfied that it is necessary in the administration of justice to make the order.

3. In this matter, I have had the benefit of both written and oral submissions prepared by Ms Latif of counsel and she has very fairly and comprehensively put in those written submissions and in a clear explanation provided to the applicant in court the basis of the exercise of the Court’s discretion under section 477(2).

4. Counsel identified Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 344 at 348 to 349 (“Hunter Vallley”), as a relevant authority which is applied by the courts in determining an application of this kind.  The factors identified in that case include the following matters being that:

   a)applications for an extension of time are not to be granted unless it is proper to do so;  the legislative time limits are not to be ignored;

   b)there must be some acceptable explanation for the delay;

   c)any prejudice to the respondent in defending the proceedings;

   d)the mere absence of prejudice to the respondent is not enough to justify the grant of an extension;  and

   e)the merits of the substantive application and whether the ground is arguable.

5. In this matter, the first named applicant filed an affidavit on

   
   

   27 February 2015 which, whilst not explicitly stating it, appears to be in support of an application to extend time.  In it, he raises that:

   a)he applied for an application for review of a decision made by the Delegate of the Minister and that application was refused;

   b)that he made a request for personal intervention by the Minister.

6. As he states:

   I did not want to file a legal application against them.  Unfortunately, the Minister did not want to intervene.  However,

   
   

   I had no other option now as my application for intervention has been refused.  I still believe that I have not been given a fair outcome in relation to my application.

   He then goes on to state that he delayed in making an application because his son – who he says did not have a valid passport and he was of the view that he needed his son to have a valid passport.  That matter is set out in very vague terms.

7. In relation to those reasons, the applicant in addressing the Court today, where he appeared with the assistance of a Nepalese interpreter, said in relation to the reasons for the delay that he wanted to spend more time here and he did not want to file as it meant that he would live here longer.  I sought clarification of that and he repeated that comment a number of times.

8. In relation to the matters he raised in relation to the fact that he made application to the Minister, I refer to an affidavit of Ms Emily Charlotte Wilde sworn 13 September 2016 and to the court book page 2 and 18 where, in circumstances where the applicant on 14 June 2012 had sought ministerial intervention as part of the first ministerial intervention process, the Department of Immigration and Citizenship, as it then was, provided the following written advice to the applicants, both of whom read, write and speak English:

   You should also be aware that the Minister is under no obligation to intervene in your case.  This means that you should not discontinue any application for judicial review on the expectation that the Minister will intervene.

9. In my view, it is reasonable to conclude that the applicant was on notice that the fact that he was making some application to the Minister did not mean that he should delay making any application for review that he considered appropriate.  In the circumstances of a delay of almost seven months, where the principal reason for the delay is so that the applicants could live in this country longer, in my view, that is not an acceptable reason for the delay in filing the application within the 35 day period and the delay of seven months is a significant one which is not explained on any good ground.

10. In relation to the question of prejudice to the respondent, no prejudice is particularly pointed to, but as is referred to in the submissions and on the basis of the Hunter Valley authority, the mere absence of prejudice is not a reason for extending the period or granting the application.  In relation to the merits of the substantive application and whether there is a reasonably arguable ground or an arguable ground, in my view no arguable ground has been advanced by the applicants.

11. The submissions filed on behalf of the first respondent correctly articulate the exercise that was embarked upon by the Tribunal where it identified the grounds of applicant advanced by the applicant and dealt with each of those grounds in detail.  In my view, having regard to the grounds advanced and the manner in which they were dealt with by the Tribunal, there is no apparent jurisdictional error.  The Tribunal identified the relevant legal issues and identified and applied the correct legal framework in determining the issues posed by the applicant.

12. The substance of the applicant’s complaint is that he does not agree with the decision that has been made by the Tribunal, which is not a proper basis for the exercise of this Court’s jurisdiction.  In relation to the second ground that there has been a denial of natural justice or a denial of procedural fairness, no argument has been advanced by the applicant in support of that ground and it is apparent from the reasons for the decision that the applicant was invited to attend a hearing and gave evidence and presented arguments in relation to the issues that he wished to raise before the Tribunal.

13. As he identified in his submission before the Court this morning, he attended the Tribunal, gave evidence and was assisted by an interpreter on that occasion.  Otherwise, no ground has been identified by the applicant and, further, no ground has been identified by the first respondent in their analysis of the material where they have sought to fairly put and deal with the matters raised by the applicant. 

14. In those circumstances, I am not satisfied that it is necessary and in the interests of the administration of justice to make an order extending the time pursuant to section 477(2)(b) and the application to extend the time is, therefore, dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 24 October 2016