Acn23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 189
•6 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ACN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 189
File number: MLG 74 of 2023 Judgment of: JUDGE FORBES Date of judgment: 6 March 2024 Catchwords: MIGRATION – protection visa – where Immigration Assessment Authority affirmed delegate’s decision – application for extension of time to seek judicial review – where application made 566 days outside time limit – consideration of relevant principles – where applicant identified contact details in protection visa application – whether applicant invited to delegate interview – where correct contact details overlooked or not used – whether explanation for delay is reasonable – whether substantive ground of judicial review arguable – extension of time granted Legislation: Migration Act 1958 (Cth) s 5H, 36, 46A, 473CB, 477 Cases cited: Bechara v Bates [2018] FCA 460
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Jess v Scott (1986) 12 FCR 187
Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCA 28
MZABP v Minister for Immigration (2015) 242 FCR 585
MZZYV v Minister for Immigration and Border Protection [2016] FCA 957
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89Division: Division 2 General Federal Law Number of paragraphs: 106 Date of hearing: 3 August 2023 Place: Melbourne Applicant: In person Counsel for the Respondent: Ms Liddy Solicitor for the Respondent: Sparke Helmore ORDERS
MLG 74 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ACN23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
6 MARCH 2024
THE COURT ORDERS THAT:
1.Pursuant to section 477(2) of the Migration Act 1958 (Cth) the time for the making of an application to seek judicial review of the decision of the Immigration Assessment Authority dated 31 May 2021 be extended to 12 January 2023.
2.That the substantive application for judicial review be referred to a Registrar of the Court for the making of case management orders and trial directions, including for the parties to file any further affidavits or outlines of submissions on which they intend to rely.
3.Costs be reserved.
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).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
On 31 May 2021 the Immigration Assessment Authority (the Authority or the IAA) affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Safe Haven Enterprise Visa (class XE) (subclass 790) (the visa or SHEV). By an application filed on 12 January 2023, the applicant seeks judicial review of that decision.
An application for judicial review is required to be made within 35 days of the date of the Authority’s decision pursuant to s 477(1) of the Migration Act 1958 (Cth) (the Act). In this case, the application for judicial review was filed 556 days outside the prescribed time limit.
Pursuant to s 477(2), the Court may extend the time period for the making of applications for judicial review. The applicant seeks an order that the time limit be extended.
For the reasons that follow, I have concluded that the application should be allowed.
BACKGROUND
This background has been prepared based on the documents contained in the Court Book and the Supplementary Court Book filed by the Minister and further documents which were provided to the court after the final hearing. The summary background in the Minister’s outline of submissions has also been considered but it is lacking in necessary detail and overlooks material facts.
For reasons which will become clear, it has been necessary for the Court to reconstruct the narrative from the materials now before it.
The applicant is a citizen of Iran. He arrived in Australia as an unauthorised maritime arrival on 9 June 2013. The applicant participated in an arrival interview at Wickham Point Immigration Detention Centre on 29 June 2013, the details of which are produced in the supplementary court book filed by the Minister.
On 14 July 2016, the Department invited the applicant to apply for the visa after the bar was lifted under s 46A of the Act. The invitation to the applicant appears to have been sent by post to an address in Kingsville, Victoria[1].
[1] Court Book (CB) 1-2
On 9 June 2017, the Department sent a further letter to the applicant reminding him of the 1 October 2017 deadline for making a protection visa application. This letter appears to have been sent by post to an address in Braybrook, Victoria[2].
[2] CB 3-4
Also on 9 June 2017, a letter in the same form was sent by the Department to the applicant, this time to an address in Footscray, Victoria[3].
[3] CB 5-6
On 8 September 2017, the Department wrote to the applicant at the Braybrook address to remind him of the 1 October 2017 deadline for protection visa applications. The letter noted that previous correspondence to the applicant had not resulted in an application from him[4].
[4] CB 7-8
On the same day, 8 September 2017, a letter in the same terms was sent by the Department to the applicant, this time to an address in West Brunswick, Victoria.
On 21 September 2017, the Department sent two letters to the applicant giving him a last warning that the time for making a protection visa was about to expire. He was informed that he would be barred from making a protection visa application if he did not lodge an application before 1 October 2017. These letters were sent by post to the Braybrook address[5] and the West Brunswick address[6].
[5] CB 11-12
[6] CB 13-14
On 25 September 2017, the applicant applied for the protection visa. He did so with the assistance[7] of a solicitor from the Asylum Seeker Resource Centre (ASRC).
[7] CB 20
In the protection visa application, the applicant or his representative inserted contact details including an @yahoo.com email address, a residential address in West Brunswick, a current postal address (identified as “same as residential”) and a mobile telephone number. The applicant stated that he agreed for the Department to communicate with him using his email address[8].
[8] CB 25
The applicant annexed a number of documents to his protection visa application, including a schedule of previous addresses. That schedule identified that the applicant had resided at the West Brunswick address from around mid-2017 and that it was his current address[9].
[9] CB 44
His application was accompanied by a statutory declaration which also deposed to the applicant’s current address as the West Brunswick address. The statutory declaration outlined the applicant’s various claims for protection which can be summarised as follows:
·the applicant is agnostic. As an agnostic he did not agree with the strict Islamic culture in Iran and struggled to conform to its rules and practices;
·as a teenager he had been stopped and detained by the Basij or police. He was arrested for playing cards in public in 2007 and in 2009 he was arrested for drinking alcohol and was lashed as a result;
·the applicant claims to be a pacifist and opposed to war and armed conflict. He did not want to complete compulsory military service for a government which consistently punished him for being himself;
·in 2013 and 2015, after his departure from Iran, he had received arrest warrants requiring his attendance at court;
·the applicant fears that he will be harmed if he returns to Iran because he left the country using a fraudulently obtained passport. He fears harm if he is identified as someone who is opposed to the regime and Islamic values;
·he fears being required to complete military service if returned to Iran;
·the applicant is concerned that he would face difficulties accessing work, getting married or accessing essential services and protection in Iran by reason of his failure to complete military service and his claims for asylum in Australia;
·he fears persecution on account that he will be viewed as Westernised because of his appearance, tattoos and lifestyle in Australia; and
·the applicant has experienced depression in Australia due to the difficulties encountered on his journey and loneliness during the period since his arrival.
On 26 September 2017, the Department sent the applicant a letter to acknowledge his application for a Safe Haven Enterprise visa. The letter noted that the application had been assessed as valid and that the letter could be produced as proof that the applicant had applied for a visa. The letter stated that the Department would contact him again regarding processing his application. This letter was sent by post to the Braybrook address[10].
[10] CB 62-63
On 5 October 2017, the Department wrote to the applicant to again confirm that the visa application had been assessed as valid. The letter stated that it included a “Visa Application Summary” which the applicant was asked to check and report any irregularities to the Department[11]. The letter confirmed that the applicant had been granted a bridging visa which would remain valid whilst his application was being processed. Relevantly, this correspondence was again sent to the applicant by post to the address in Braybrook[12].
[11] The Visa Application Summary was not provided in the Court Book
[12] CB 65
Approximately three and a half years later, on 26 March 2021, the delegate invited the applicant to attend a SHEV interview which was scheduled to occur on 9 April 2021. The invitation explained that the applicant would be given an opportunity to discuss his visa application and his claims. It stated that the purpose of the interview was to obtain more information about his application and he was requested to bring certain documents with him.
The 26 March 2021 invitation is addressed to the applicant at the Braybrook address. That is neither the residential nor postal address set out in the visa application. The letter purports to have been transmitted by email and contains the statement “As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted”. However, the email address on the face of the letter appears not to correspond with the email address set out in the applicant’s visa application. There is no evidence in the court book or otherwise before the court to confirm whether the letter was sent to the email address nominated in the application or the email address on the face of the letter.
A few days later, on 30 March 2021, the Department sent the applicant an email to the @yahoo.com address nominated by the applicant in his visa application. The email asked the applicant to confirm his attendance at the 9 April interview, but it did not include a copy of any previous correspondence, including the original hearing invitation.
The applicant did not attend the SHEV interview with the delegate on 9 April 2021.
On that day, and again on 13 April 2021, the applicant was sent further emails asking him to contact the Department to arrange a new interview time. Each of the emails appears to have been sent to the @yahoo.com email address nominated by the applicant for communication with the Department. The applicant was also put on notice that if he failed to respond within 7 days of 9 April 2021, the delegate would proceed to make a decision on his application based on the information at hand and without any further contact. No response to either of these communications was received from the applicant.
On 3 May 2021, the applicant was informed via email that the delegate had refused to grant the visa.
The delegate’s decision record dealt with the applicant’s failure to attend the SHEV meeting. Relevantly, the delegate stated[13]:
“The applicant was sent a letter via email on 26 March 2021 inviting him to attend an interview for his SHEV application scheduled for 9 April 2021. He is unrepresented.
On 30 March 2021 the applicant was contacted via email to confirm his attendance to the interview but no response was received. The applicant was called on the mobile phone number provided to the Department on 8 April 2021, however, the mobile number was disconnected.
On the day of the applicant’s scheduled interview, after his failure to attend, the applicant was emailed and asked to provide a response to the department within 7 days as to why he did not attend the interview. A reminder email was sent on 13 April 2021 to prompt the applicant to respond to the Department within 7 days. No response has been received to either email sent.
Given the applicant’s failure to engage with the Department in assessing his Protection claims despite multiple attempts being made by the Department to do so by email and telephone, I find that the applicant’s disengagement leaves me no option but to assess his case without further contact.”
[13] CB 75
In assessing the protection claims, the delegate was not satisfied that the applicant met the refugee criteria in s 5H(1) of the Act and was not satisfied that he was a person in respect of whom Australia has protection obligations under s 36(2)(a). Furthermore, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Iran, there is a real risk that he will suffer significant harm as defined in s 36(2)(aa). Therefore, the applicant did not meet the complementary protection criteria.
The 3 May 2021 correspondence and the decision record were sent to the email address nominated by the applicant, although the covering letter was again addressed to the Braybrook address[14]. The letter informed the applicant that his application would be referred to the Authority for review and that the Authority had been provided with his “contact details for the purpose of receiving documents”[15]. Among other things, the applicant was cautioned that if any of his contact details had changed, he was required to inform the Authority and the Department of his up to date details for correspondence.
[14] CB 71
[15] CB 72
On 7 May 2021, the matter was referred to the Immigration Assessment Authority for FastTrack review pursuant to the provisions of Part 7AA of the Act.
On 7 May 2021 the Authority sent a letter to the applicant acknowledging that his case had been referred for Part 7AA review. That correspondence was forwarded to the email address given in the applicant’s protection visa application and a copy was also sent by post to the Braybrook address. The Authority also made attempts to contact the applicant by telephone on 7 May 2021 and a message was left on his voicemail.
The Court Book filed in this proceeding reveals that on 13 May 2021 at 2.23pm the Authority sent an email to the Department requesting the applicant’s most recent address[16]. The email, which contained the applicant’s name and unique identification number in the subject matter heading, read as follows:
[16] CB 96
“Hello Department,
The IAA is seeking clarification on the correct postal address for the above applicant.
The 2021 DHA interview invitation and Refusal Notification letter recorded the applicant’s postal address as [redacted address in Braybrook, Victoria].
However, in the IAA checklist the following is recorded as his address: [redacted address in Meadow Heights, Victoria].
Can DHA please advise the current postal address for the applicant for the purposes of receiving notification?
The IAA notes that DHA correspondence has been sent to the applicants email address-in line with his agreement in his SHEV application to receive electronic communication.
If you have any questions in regards to this message, please contact us at […]
Yours sincerely
[name redacted]
Immigration Assessment Authority”
I note, in passing, that in the index to the Court Book filed by the Minister, this email was described as “Email from Authority to applicant (13.05.21)”. This was not an accurate description as the document is self-evidently an email between the Authority and the Department.
As it turns out, the Department responded to the Authority’s email about 12 minutes later. The responding email from the Department read:
“Good Afternoon,
Please see below:
Applicant’s Current HOME Address: [redacted address in Meadow Heights, Vic] (From: 8/10/18)
Applicant’s Current POSTAL Address: [redacted address in Braybrook] (From: 26/9/16)
Kind regards,
[name redacted]” (underlining in original)”
The Department’s responding email (referred to in the paragraph above) was not contained in the Court Book and only came to light after I raised a question with the Minister’s representative during the extension of time hearing. After enquiries were made after the hearing, the Department’s response to the IAA email was produced to the court by the Minister’s solicitors. The solicitors also produced an IAA Case File Note which confirmed that on 7 May 2021 a “courtesy copy” of the Authority’s acknowledgement letter had been sent to the Braybrook address.
The applicant’s visa application nominates a residential and postal address in West Brunswick. Suffice to say, the correspondence between the Department and the Authority does not accord with the information provided in that application. I discuss these events later in the reasons.
Authority’s decision
On 31 May 2021, the Authority affirmed the delegate’s decision[17].
[17] CB 98-112
At [5] of its decision record, the Authority explained that in reaching its decision it had regard to the review material provided to it by the Secretary under s 473CB of the Act.
From [6]-[9], the Authority referred to the various attempts made by the Department to invite the applicant to attend a SHEV interview to discuss his claims, including follow-up attempts made to confirm his attendance or arrange a new interview. The Authority noted that in his protection visa application, the applicant had agreed to the Department communicating with him by email and that he had provided an email address for that purpose.
At [7] the Authority expressed satisfaction that the applicant had been appropriately notified of the SHEV interview by the Department and had been provided an opportunity to discuss his protection claims.
At [8] the Authority recorded its own efforts to contact the applicant in relation to the Part 7AA review. There it noted that:
“The IAA sent the applicant a letter dated 7 May 2021 acknowledging his case had been referred for review; this was sent to the email address given in his protection visa application and a courtesy copy was sent by post to the address given by the applicant as his postal address. The IAA also attempted to contact the applicant by telephone on 7 May 2021; the call went to voicemail and a message was left. No response has been received from the applicant in reply to the acknowledgement letter or the telephone message, nor has the letter or email correspondence been returned.” (underlining added)”
The Authority then continued at [9]:
“Noting the repeated unsuccessful attempts by both the department and the IAA to contact the applicant, including telephone calls and emails to the email address given in the protection visa application, I am not satisfied that any further attempts to correspond with the applicant are warranted. In the circumstances I have decided to proceed on the information before me without inviting the applicant to provide further information.”
I note, at this juncture, that there is no mention in the Authority’s decision record of the enquiry made by the Authority to the Department on 13 May 2021 which sought more recent information about the applicant’s postal address. This was only revealed after an exchange with the Minister’s representative at the hearing of the application for an extension of time.
The Authority’s reasons go on to record a number of factual findings in relation to the protection claims. These included:
·acceptance by the Authority, based on country information, that the applicant had come to the attention of authorities in Iran by reason of his behaviour and appearance, including being in the company of girls, drinking alcohol and playing cards which were breaches of the moral code[18];
[18] Immigration Assessment Authority’s (Authority’s) Reasons at [15]
·acceptance by the Authority, based on country information, that the Basij continued to monitor the Iranian population and businesses for compliance with the moral code. The Authority noted, however, that the increasingly heavy-handed enforcement approach was mostly related to the appearance of women rather than men[19];
[19]Authority’s Reasons at [16]
·that while it was plausible that the applicant had been taken to the police station because of his consumption of alcohol, the Authority was not satisfied that the applicant had been lashed because this was counter to country information. The Authority noted that even if the applicant had been lashed, it was not satisfied there was a real chance he would be similarly harmed should he return to Iran because country information indicated that alcohol was readily available, widely consumed and not actively investigated by the authorities[20];
[20] Authority’s Reasons at [17]-[18]
·country information did not support a finding that the applicant faced a real chance of serious harm for alcohol consumption, for his appearance, tattoos and lifestyle choices, including being in the company of girls, or being viewed as westernised. The Authority found that any official, or societal discrimination the applicant would experience on this basis, or any fine for alcohol consumption, would not amount to serious harm[21];
·that the applicant, if returned to Iran, would not be persecuted or come to any harm because of his behaviour in Australia, even if it became known in Iran. Country information indicated that authorities have little interest in prosecuting returned asylum seekers because of their activities while abroad[22];
·the Authority accepted that the applicant was agnostic and that he did not agree with the strict Islamic culture. However, the Authority found no indication in the applicant’s account that he had come to the adverse attention of authorities or had been harmed in Iran on this basis. There was no evidence that the applicant had been outspoken about religion in Iran or in Australia and country information indicated that he would not come to any adverse attention for having not taken part in Muslim rites or Friday prayers[23];
·the Authority accepted that the applicant may prefer not to complete compulsory military service but was not satisfied his reasons for not doing so was because he was a pacifist or a conscientious objector[24];
·the Authority doubted the applicant’s account that he had obtained his passport through use of a false military exemption. The Authority found that multiple layers of security existed in Iran to protect against the issuing of fraudulent documents and that the significant consequences for those involved in doing so acted as a major deterrent[25];
·at the time the applicant departed Iran he most likely had a legitimate exemption from military service[26];
·the Authority was not satisfied that the applicant obtained his passport by fraudulent means, including by using a false military service exemption. Accordingly, the Authority did not accept that the applicant would be of interest to the authorities in Iran because of the circumstances of his departure, nor did the Authority accept he would face any harm in Iran on return. The Authority did not accept that the applicant would be required to undergo military service or that he would face difficulties accessing work, getting married or accessing essential government services and protection[27];
·although the applicant might be questioned on return because of his travel documentation, based on country information there would not be any adverse interest in the applicant and he would not be harmed during the questioning or return process[28];
·the Authority accepted the applicant’s claim that he had experienced depression in Australia but found, based on country information, that he would have access to publicly available health services and would not be denied access to medical care in Iran[29]; and
·there was not a real chance that he would experience any harm as a returning failed asylum seeker and there was no indication that he had been involved in any activities in Australia that would be of concern to the authorities[30]
[21] Authority’s Reasons at [19]-[20]
[22] Authority’s Reasons at [21]
[23] Authority’s Reasons at [22]-[25]
[24] Authority’s Reasons at [26]-[27]
[25] Authority’s Reasons at [29]
[26] Authority’s Reasons at [30]-[31]
[27] Authority’s Reasons at [32]
[28] Authority’s Reasons at [33]
[29] Authority’s Reasons at [34]
[30] Authority’s Reasons at [35]
In light of the above findings and having considered the applicant’s claims and circumstances as a whole, the Authority was not satisfied that there was a real chance of the applicant suffering persecution in the reasonably foreseeable future should he return to Iran and concluded that the applicant did not meet the refugee criteria in s 36(2)(a). The authority also found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Act.
As previously mentioned, the Authority delivered its decision on 31 May 2021. Notification of the decision to refuse the visa, a copy of the Authority’s reasons and a fact sheet about IAA decisions was emailed to the applicant on 31 May 2021 to the email address he had provided in his visa application[31]. The covering letter to the applicant invited him to contact the Authority if he had any questions about the review or questions about what happens next.
[31] CB 98
Pursuant to s 477(1) of the Act an application for judicial review is required to be made within 35 days of the date the Authority’s decision. No application was made within that timeframe.
Application for Extension of Time
Section 477(2) of the Act provides that:
(2)The Federal Circuit and Family Court (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court (Division 2) considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit and Family Court (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit and Family Court (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
In an application filed in this Court on 11 January 2023 the applicant sought an extension of time to seek judicial review of the Authority’s decision to refuse the visa. The application was filed 556 days out of time.
The grounds advanced in support of the application are that there were reasonable reasons for the delay (as set out in an accompanying affidavit from the applicant), that an extension would occasion no prejudice to the Minister, that the impact of the decision on the applicant weighs in favour of granting an extension and that it is in the interests of the administration of justice to do so.
In terms of the substantive application for judicial review, the applicant seeks to impugn the Authority’s decision on two bases, of which only one is a proper ground. The applicant contends that:
1.The decision of the Authority is affected by jurisdictional error on the basis that it was unreasonable for the Authority to affirm the Department of Home Affairs delegate’s decision to refuse the Applicant’s Protection visa application without exhausting available means to contact the Applicant.
2.The applicant has made an application for assistance through Victoria Legal Aid and is waiting for a decision.
Relevant legal principles
It is well-settled that in determining whether it is in the interests of the administration of justice to extend time under section 477 of the Act, there are a range of factors to which the court can have regard[32]. Whilst there is no exhaustive list of factors, commonly the following matters are regarded as relevant to the exercise of the court’s discretion:
(a)the length of the delay;
(b)any explanation for the delay;
(c)prejudice to the Minister if the extension of time were granted; and
(d)the merits of the substantive application[33].
[32] Bechara v Bates [2018] FCA 460 per Perry J at [17] – [18] and the authorities cited therein
[33] See MZABP v Minister for Immigration (2015) 242 FCR 585
In terms of delay, the time frames for applying for relief by a person affected by an adverse decision should be rigidly applied “in all but very exceptional cases”[34]. The longer the delay, the more persuasive the explanation needs to be[35]. Where there has been an unacceptably long delay and no adequate explanation, the statutory time frame should prevail even if it may result in a good cause of action being defeated[36].
[34] Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 at [16]
[35] Jess v Scott (1986) 12 FCR 187
[36] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 533
The power to extend the time for filing a review application, such as that permitted by section 477(2), was recently the subject of judicial consideration by the High Court in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCA 28 (Katoa). In Katoa the High Court did not take issue with these settled principles, although it did consider the jurisprudence which had developed regarding how the court should assess the merits of the substantive application, in particular, whether the court can assess the “merits” on anything other than an “impressionistic” basis.
As to the assessment of merits in the context of an extension of time application, the plurality in Katoa (Kiefel CJ, Gageler, Keane and Gleeson JJ) stated at paragraphs [17] and [18]:
“[17][…] it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
[18]However […] 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”. In such a case, a proper exercise of the power conferred by 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. The broad power in 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.”
Similar comments were also made by the balance of the court in Katoa (Gordon, Edelman and Steward JJ) from paragraph [62]:
“[62][…] Where an application for an order under s 477A(2) has been made to the Federal Court “specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order”, the question for the Federal Court - the statutory question - is whether the Court is satisfied that it is necessary in the interests of the administration of justice to grant the extension. There are no mandatory considerations. A number of factors may be relevant and it is for the judge hearing the application to decide what is both necessary and sufficient to resolve the issues raised in the application. In assessing whether it is necessary in the interests of the administration of justice to grant the extension under s 477A(2), the merits of the underlying application may be, and often are, considered and given considerable weight. In some, maybe most, extension of time applications, the judge can and does consider the merits of the underlying application at what might be described as a threshold level - inquiring whether the proposed grounds of review enjoy reasonable prospects of success. But in order to resolve the facts and issues raised in an application, the judge may sometimes consider that it is necessary to have regard to the merits of the underlying application in greater detail.
[63][…] the Federal Court does not ordinarily fall into jurisdictional error by concluding that it is not necessary in the interests of the administration of justice to grant an extension of time after having undertaken something more than a preliminary or threshold assessment of whether the proposed grounds of review enjoy reasonable prospects of success.”
HEARING
On 19 January 2023, orders were made by a Registrar of this Court permitting the applicant to file and serve any amended application, written submissions and any further affidavit evidence by 6 July 2023. No materials were filed prior to the hearing.
The Minister, on the other hand, filed a Court Book and Supplementary Court Book (containing a copy of the applicant’s arrival interview) and an outline of submissions and list of authorities. I have read and considered that material in the course of reaching my decision.
The applicant was self-represented in this hearing but appeared with the assistance of a Farsi interpreter. The Minister was represented by Ms Liddy, a solicitor.
At the commencement of the hearing I explained the manner in which I would approach the application for an extension of time. My explanation was consistent with the principles referred to above and I invited the applicant to address the relevant considerations, namely his explanation for the delay and the substantive grounds of his application for review of the Authority’s decision.
Applicant’s submissions
In his affidavit filed in support of the application, the applicant deposed that he lodged his protection visa application in 2017 with the assistance of the ASRC. He said that while he was assisted by the ASRC they did not represent him. The applicant does not dispute that he agreed to the Department communicating with him by email and that he had provided an email address for that purpose.
The applicant claims that in approximately January 2021 he accidentally left his backpack on a tram in Melbourne. He deposed that the backpack contained his wallet and mobile phone and that he reported the loss to the local police station. He claims that after the phone was lost, he could no longer access his emails so he created a new email address and also obtained a new mobile phone number. The applicant concedes that he did not update the Department of Home Affairs with his new contact details.
The applicant claims that he did not receive the delegate’s decision dated 3 May 2021 nor the Authority’s decision dated 31 May 2021 by either email or post.
The applicant claims that he was in the Metropolitan Remand Centre in Victoria for 10 days in June or July 2021, the months immediately following the Authority’s decision. In his affidavit, the applicant deposes that while he was in the Remand Centre someone from the Department called and advised him that he would be granted a one-month bridging Visa so he could “organise whether I was returning to Iran or continuing to seek protection in Australia”. He claims that the Departmental officer “did not make it clear that my protection visa application had been refused”. He also says that during this contact, the Departmental officer took his new mobile number and email address.
In the course of his oral submissions, the applicant again referred to the contact he had with the Department while he was in remand. He sought to impress upon the court the genuineness of his belief at the time that his protection visa application had not been finally determined, a belief he says was based on the failure of the Departmental officer to say otherwise. In his oral submissions the applicant also added that the Departmental officer had told him that “no Iranians would be deported”.
In his affidavit the applicant deposes that after he was released from remand, he made several efforts to contact the Department to find out what to do. He says that on the first occasion he was put on hold and was then told to call back another day. The applicant claims that on at least 3 subsequent occasions he was left on hold for two hours at a time without any answer, and eventually gave up trying. The applicant said that during this period of time he was not in a good place, was not receiving any financial assistance from Centrelink, was dependent upon his wife and was in a poor mental state.
In or around August 2022 to the applicant was arrested for handling stolen goods and spent approximately 35 days in the Marngoneet Correctional Centre. In October 2022 he was then transferred to the Melbourne Immigration Transit Accommodation (MITA) after being informed that he did not have a valid visa. He says that he believed that his bridging visa had expired but was still under the impression that his protection visa application was yet to be determined. The applicant claims to have contacted the ASRC for legal assistance sometime after he arrived at MITA.
The applicant deposes that on 23 December 2022, the ASRC assisted him to call the Authority and it was only then that he found out that the Department had refused his protection visa application and that the Authority had affirmed the Department’s decision. The applicant claims this was the first time he had heard that his protection visa application had been refused. The applicant says that he also learned that his contact details on the Authority file where his old, incorrect, contact details.
Having learnt that the protection visa application been refused, the applicant says he acted promptly and took the first available appointment with ASRC to seek their assistance to file an application for judicial review. That appointment took place on 11 January 2023 and his application for an extension of time was lodged the following day.
In his oral submissions the applicant also:
(e)reiterated that he did not know there had been a decision to refuse his visa application until he learnt about it during his time at MITA;
(f)said that he did not know that he had to contact the Department to change his contact details after losing his mobile phone;
(g)conceded that he never took any steps to update his details until he was contacted when in remand;
(h)asserted that he could not access email other than by using his mobile phone and that he needed a new phone number in order to change the password to access emails;
(i)claimed that because he had initially sought the assistance of the ASRC to help him file the protection visa application, he believed that the organisation retained his contact details and that he would be informed by them of any decision; and
(j)submitted that an extension of time should be granted so that he could obtain legal assistance to better represent his case to the court. He said he was unable to afford that assistance presently and he was hoping that his wife could assist.
Turning to the merit of the substantive application for judicial review, the applicant submits that notwithstanding he did not update his contact details, the Authority could have done more to contact him prior to affirming the delegate’s decision. He also believes the Authority could have sought his details from the ASRC as they had assisted him with the protection visa application and would still have had his details on file.
The applicant also submits that the Authority made a mistake in dealing with his claim for protection. He submitted that he arrived on a forged passport and that was the reason why he cannot return to Iran. He submitted that the Authority failed to properly consider that claim.
Furthermore, the applicant submitted that since coming to Australia he has suffered mental health issues in relation to which he provided supporting medical information. He claims that the Authority also failed to properly consider that information.
Finally, the applicant argued that his circumstances have changed since his arrival in Australia. He has been married five years and last June enjoyed the tenth anniversary of his time in Australia. He said that he believes he is entitled to a visa and that an extension of time should be granted to enable him to retain legal representation and to pursue judicial review.
Minister’s submissions
The Minister’s solicitor Ms Liddy relied upon the written outline of submissions dated 17 July 2023 and developed those submissions orally at the hearing.
The Minister submitted that the significant delay of 556 days had not been adequately explained by the applicant and that the substantive application for review did not reveal any sufficiently arguable case upon which the court could be satisfied that it is necessary in the interests of the administration of justice to make an order extending time for the filing of the application pursuant to s 477(2) of the Act.
Citing relevant authority, the Minister submitted that this case was not in the category of “very exceptional cases” which warranted relief from the strict statutory time limit. The Minister reiterated that the longer the delay, the more persuasive the explanation needs to be - and that the explanation in this case was far from persuasive.
The Minister briefly surveyed the history of this matter commencing from the lodgement of the protection visa application through to the Authority’s decision on 31 May 2021. That background is set out earlier in this judgment and I will not repeat it again.
Suffice to say, the Minister emphasises the following points:
(a)the Minister does not contest that the applicant received some assistance in lodging the visa application, however the application itself was filed by the applicant and the contact details for future communications from the Department, including residential address, postal address, email and phone number were those supplied by the applicant;
(b)the delegate invited the applicant to attend a SHEV interview on 9 April 2021, an invitation which was sent to him by email. Further emails were sent to the applicant before the delegate made a decision; and
(c)efforts were made by the Authority to contact the applicant by email, post and telephone on 7 May 2021 before it reviewed and decided upon the applicant’s visa application. The letter sent by the Tribunal to the applicant was not returned to sender, a fact which is recorded at [8] of the Authority’s decision.
The Minister submits that between the time his mobile phone was lost and the Authority made its decision on 31 May 2022, the applicant had several months to update his contact details. The applicant’s evidence is that he obtained a new mobile device and a new email address as a result of the mobile phone loss. The Minister submits that the applicant therefore had a means of communication and had given no adequate reason to explain why he did not inform the Department of his new contact details.
The Minister submits that it is an applicant’s responsibility to ascertain his review rights and applicable time limits[37]. Moreover, the Minister contends that an applicant for a protection visa, exercising reasonable diligence, should have been alive to the importance of ensuring the Department had a means of contacting him so that his application could be processed. In particular, any prudent applicant knowing that his contact details had changed before the dates of the delegate’s and Authority’s decisions, could easily have updated his details prior to those events and before he was remanded in custody.
[37] SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38]; MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25]
The Minister concedes that there is no prejudice if an extension of time is granted, but submits that the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.
As to the substantive grounds of review, the Minister submits that they lack merit and enjoy no real prospect of success. The Minister reminded the court that the applicant only advances two grounds of review in the application (of which only ground one is directed at the authority’s decision) and that prior to the hearing he did not seek to amend that application or file submissions. Accordingly, the only substantive attack on the Authority’s decision is the applicant’s contention in ground one that it was unreasonable for the Authority to confirm the delegates decision “without exhausting available means to contact him”.
The Minister submitted in writing as follows:
“[34]In respect of ground one, the Authority’s procedural fairness obligations are set out in Part 7AA, Division 3 of the Act. Section 473DA provides that Part 7AA Division 3 (together with ss 473GA and 473GB) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to Authority reviews. The combined effect of ss 473DA(1), 473DB(1) and 473DC(2) is that the Authority is required to conduct a review of the delegate’s decision on the papers and the common law rules of procedural fairness do not govern the way in which reviews are to be conducted under Part 7AA.
[35]The Minister submits that it was not unreasonable for the Authority not to exercise its discretionary power under s 473DC of the Act to invite the applicant to provide any additional new information or to attend an interview. The Authority considered the review material which outlines attempts by the Department to invite the applicant to attend an interview to discuss his protection claims, including follow up attempts to confirm his attendance and to schedule a new interview when he failed to attend (CB 100 [6]). The Authority was satisfied that the applicant was appropriately notified of the interview by the Department and provided the opportunity to discuss his claims (CB 100 [7]). The Authority sent the applicant a letter dated 7 May 2021 acknowledging his case had been referred for review. This was sent to the email address given in his protection visa application and a courtesy copy was sent by post to the address given by the applicant as his postal address. The Authority also attempted to contact the applicant by telephone on 7 May 2021, but the call went to voice mail and a message was left. No further response was received by the applicant, nor had the letter or email correspondence been returned (CB 100 [8]). In all those circumstances, the Authority was not satisfied that any further attempts to correspond with the applicant were warranted (CB 100 [9]).
[36]The Authority’s decision to proceed on the information before it without inviting the applicant to provide further information was open to it for the reasons given. The applicant was not in detention or remand at the time of the referral so the Authority’s decision to send correspondence to his postal address is not attended by error. By the applicant’s own affidavit evidence, the applicant’s email address and phone number had changed as at January 2021, but he did not update the Department with his new details before the applicant’s SHEV application was referred to the Authority. Accordingly, no error is revealed by the Authority’s reasoning, which is neither unreasonable nor illogical.
[37]Ground two simply states that the applicant is seeking legal assistance. This is not a proper ground of review and should be dismissed.”
Reinforcing those submissions orally, the Minister’s representative argued that in a Part 7AA review the Authority was under a duty to assess the material before it, but it did not have a duty to provide the applicant with an opportunity to provide further information. It was open to the Authority to proceed in the way it did, including by making attempts to contact the applicant by telephone, email and regular mail using the details which he had provided in his application.
The Minister submits that at the time the Authority attempted to contact the applicant, he was not in detention or in remand. Therefore, the attempt to contact him using the details provided by him cannot have been unreasonable.
As I mentioned earlier, the material in the Court Book included an email from the Authority to the Department on 13 May 2021 where, prior to undertaking its review, the former sought information from the latter about the applicant’s current postal address. The response from the Department was not in the Court book but was produced to the court[38] after I raised questions about it with the Minister’s representative. Paragraphs [35]-[36] of the Minister’s written outline suggests that the Minister’s representatives may not have been alive to this email exchange.
[38] Email from Sparke Helmore to chambers dated 3 August 2023
As can be seen from the Authority’s email and the response from the Department, the postal address recorded in the Department’s files was different from that provided by the applicant in the visa application. There is no evidence that the Authority attempted to contact the applicant at the West Brunswick address specified in the visa application or the West Meadows residential address or Braybrook postal address provided by the Department in response to the Authority’s query.
In an email to the parties on 4 August 2023, I invited each of them to provide the court with a further written submission to address the relevance (if any) of this particular evidence to the applicant’s assertion that the Authority had fallen into judicial error by failing to exhaust all available means to contact him.
The applicant did not respond to the invitation. However, in a supplementary written submission filed on 18 August 2023, the Minister submitted as follows:
“[2]The Minister accepts that on 13 May 2021 the Department confirmed to the IAA that the applicant’s home address from 8 October 2018 was [West Meadows]. However, it remained the applicant’s responsibility to update his contact details with the Department.
[3]The Minister notes the applicant’s submissions at the hearing on 3 August 2023 that he lost his phone in early 2021 and was therefore unable to access his email account. He submitted he was not aware of the refusal decision and, presumably, that this is an explanation for the delay. The Minister contends that this is not an acceptable explanation for the delay. The applicant was aware that his contact details including his email address and phone number had changed from approximately January 2021, yet did not update his details until being contacted by the Department in whilst in prison in June or July 2021. Further, the applicant has provided no explanation as to why he could not access his email address by other means beyond by his mobile phone.
[4]In this regard and critically, the applicant consented to contact from the Department via email in his application for the visa, and provided his email address for communication: CB 25.
[5]As noted by the Authority in its decision, the Authority sent the applicant an acknowledgement of the referral to the applicant’s email address listed on his visa application, and a courtesy copy was sent to the applicant’s postal address: CB 100 [8]. The Authority also noted that neither the email nor letter was returned to the Authority. That is, there was no obligation on the Department or the Authority to correspond with the applicant by his postal address.
[6]The Minister submits that the combined effect of ss 473DA(1), 473DB(1) and 473DC(2) is that the Authority is required to conduct a review of the delegate’s decision on the papers and the common law rules of procedural fairness do not govern the way in which reviews are to be conducted under Part 7AA. The Authority went beyond the legislative requirements in attempting to contact the applicant.”
In any event, the Minister submits that no practical injustice has been done. The Minister submits that in performing its statutory task, the Authority did consider each of the applicant’s protection claims and dealt with those at [26]-[32] of its reasons. In particular, it expressly dealt with the applicant’s claims that he left Iran on a fraudulent passport and his claims relating to his mental health. The Minister submits that the Authority comprehensively considered each of the protection claims and made a decision which was open to it on the available evidence.
CONSIDERATION
Explanation for delay
The application for an extension of time to seek judicial review of the Authority’s decision was filed 556 days after the expiry of the 35 day time limit prescribed by s 477(1) of the Act. On any view that is a very significant delay. In Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89, Gageler J observed that a slightly lesser delay of 16 months required a case to be “exceptional” for an extension of time to be granted.
It would appear that the applicant’s phone was lost and replaced and a new email and phone number set up well before the delegate’s decision and the Authority’s confirmation of that decision. As I will discuss below, it is quite plausible that the applicant did not know about the dismissal of his visa application by the delegate and the Authority until late 2022. However, the applicant concedes that he did not provide updated contact details to the Department in 2021 and for that he can only hold himself responsible.
The fact that the applicant may have lost access to his email and mobile at some point in 2021 does not in and of itself justify the delay in applying to this Court. Nevertheless, coupled with reasoning below, I am of the view that this is an exceptional case in which an extension of time should be granted.
Prejudice to the respondent
The Minister concedes that there is no prejudice if an extension of time is granted. This in itself is not enough to warrant the grant of an extension[39].
[39] SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]
Merits of grounds in the substantive application
The substantive ground of judicial review advanced by the applicant is that the Authority did not exhaust efforts to locate him before affirming the delegate’s decision not to grant the protection visa.
The Authority was not satisfied that any further attempts to correspond with the applicant were warranted. Having reached that conclusion, the Authority decided to proceed on the information before it without inviting the applicant to provide further information.
A foundational finding on the way to reaching the conclusion that further attempts to correspond with the applicant would be futile was that there had been “… repeated unsuccessful attempts by both the Department and the IAA to contact the applicant, including telephone calls and emails to the email address given in the protection visa application”[40]. Further foundational findings were that the Department had invited the applicant to attend an interview to discuss his protection claims[41] and that the email communication was sent to the email address given by the applicant in his protection visa application[42]. At [7] the Authority expressed satisfaction that the applicant had been appropriately notified of the interview by the Department and provided the opportunity to discuss his protection claims.
[40] Authority’s Reasons at [9]
[41] Authority’s Reasons at [6]
[42] Authority’s Reasons at [7]
It is self-evident from the reasons at [5]-[6] that the Authority’s findings that the applicant had been invited to an interview with the delegate and had not attended were based on its review of the material provided to the Authority by the Secretary under s 473CB of the Act. Details of the attempts made by the Department to interview the applicant and follow-ups to confirm his attendance or arrange a new interview were included in that referred material.
Based on the background history derived from materials contained in the Court Book, it is at least arguable that the Authority was mistaken in finding that the Department had invited the applicant to attend an interview with the delegate by sending an email to the address given by the applicant in his protection visa application.
Had the Authority picked up, on its review of the materials, that:
(a)in his protection visa application the applicant identified a residential and postal address in West Brunswick;
(b)the invitation to the SHEV interview with the delegate was not addressed to the West Brunswick postal address nominated by the applicant in his visa application;
(c)on its face, the invitation was not sent to the email address nominated by the applicant in his visa application;
(d)there is no evidence of any attempt by the Department to contact the applicant at either the residential or postal addresses nominated in his visa application;
(e)in their record of decision, the delegate noted that the mobile phone number provided by the applicant in the visa application had been disconnected; and
(f)the postal address provided to the Authority and subsequently confirmed by the Department in its 13 May 2022 email did not accord with the address nominated by the applicant in his protection visa application
it is at the very least arguable that the Authority would have made a further or different enquiry regarding the applicant’s whereabouts before concluding that there was no point in doing so. To the point, there is no evidence in the materials presently before the Court that the delegate or the Authority ever attempted to contact the applicant at the residential or postal address specified in his visa application. If such a further or different enquiry had been made by the Authority, it might have resulted in the Authority adopting a different course in the review and resulted in a different outcome. In that sense, any error may be material.
It is not necessary to determine what if any enquiry would or could have been made by the Authority or what the outcome of the enquiry would have been. It suffices that there was an avenue or avenues which the Authority could have taken. In the circumstances of this application for an extension of time, I am satisfied that there is a reasonably arguable basis for the judicial review application and that it is in the interests of the administration of justice to allow it to be heard.
Based on the history of the matter, at least as presented in the materials in the Court Book and taking into account the explanation for delay set out in the applicant’s affidavit, I accept as plausible that the applicant did not know about the dismissal of his visa application by the delegate and the Authority until late 2022. There is no doubt that the applicant would have become aware of these events and his review rights had he provided the Department with up-to-date contact details. The obligation to inform the Department of any changes in an applicant’s contact details fall squarely at the feet of the applicant.
However, a feature of this case is that the Department might not have kept its own records up-to-date or might not have consistently communicated with the applicant via the means of communication identified by him in the protection visa application.
In my view, any period of delay in making the application for judicial review and any inadequacy of the applicant’s excuse for the delay, does not outweigh the justice of allowing the judicial review application to be heard and determined.
CONCLUSION
For the reasons set out above, I am satisfied that the interests of the administration of justice require that an extension of time be granted in this case. In the circumstances, the interlocutory application is allowed.
This matter will be listed for directions before a Registrar of this Court for the making of orders for the final hearing of the substantive application. Those orders should include affording the parties a further opportunity to file relevant evidence and outlines of submissions.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 6 March 2024
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