AEI22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 906
Federal Circuit and Family Court of Australia
(DIVISION 2)
AEI22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 906
File number(s): MLG 109 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 3 November 2022 Catchwords: MIGRATION LAW – application for extension of time – decision of Immigration Assessment Authority – Safe Haven (subclass 790) visa – where application for judicial review was filed some 36 days out of time – consideration of whether it is in the interests of the administration of justice to extend time – where there is some merit to the applicant’s explanation for delay and where Minister conceded lack of specific prejudice if application granted – balanced against finding that none of the grounds of review have a reasonable prospect of success – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 476, 477 Cases cited: EUW17 v Minister for Immigration [2020] FCA 744
Minister for Home Affairs v DUA16 (2019) 273 FCR 213
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] to [13]
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 104 Date of last submission/s: 22 August 2022 Date of hearing: 22 August 2022 Place: Melbourne Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Minter Ellison ORDERS
MLG 109 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AEI22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
3 November 2022
THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
Introduction
Before the court is an application for extension of time in which to bring an application for judicial review pursuant to section 477 of the Migration Act 1958 (Cth) (‘the Act’). The first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’), opposes that application.
At the commencement of the hearing before me, counsel for the Minister indicated that the Minister did not oppose having both the extension of time and substantive judicial review applications determined at the same time.[1] I understood from this submission that there was no objection by the Minister in my considering whether to grant the extension of time, which was opposed, and if I determined to grant the extension of time to then proceed to determine the substantive application for judicial review.
[1] Court transcript at page 2.
Background
The applicant is a citizen of Lebanon of Muslim faith. He arrived in Australia on 25 July 2013 as an unauthorised maritime arrival, at which time he was 15 years old. The applicant was accompanied to Australia by his father and sister.
In the arrival interview record, in response to a question about why he left Lebanon, the applicant stated that his father, who was doing farming work, had received threats from the mafia, who had threatened to extort his father.[2] He stated that this incident occurred approximately a year before his father made the decision to come to Australia.
[2] Court book at page 36.
The applicant explained that by ‘mafia’, he was referring to people from bigger tribes and villages who were armed with weapons. He further explained that ‘if you had a farm they wanted to grab it, if you had money they wanted to take it’. The applicant specified that this was the only reason for his father’s decision to leave Lebanon for Australia.
In response to a question about what he thought would happen if he and his family returned to Lebanon, the applicant stated, ‘I don’t know the unknown but I can predict some serious problems not just for myself but for others. We would face the threats we faced before’.[3]
[3] Court book at page 37.
Application for protection visa on 16 August 2017
On 16 August 2017, the applicant applied for a Safe Haven Enterprise (subclass 790) visa (‘protection visa’). In this application, the applicant indicated that he had made a Freedom of Information request, and that he would provide a statutory declaration addressing his protection claims after the documents he had requested were released to him.
On 21 August 2017, the applicant was asked to produce documentary evidence of his identity, nationality or citizenship pursuant to subsection 91W(1) of the Act.[4] On 15 September 2017, the applicant provided a translated copy of his Lebanese national identity card.[5]
[4] Court book at pages 98 to 100.
[5] Court book at page 103.
Subsequently, on 5 October 2017, the applicant provided a statement of claim in support of his application for a protection visa.[6] In that statement, the applicant described the situation in his village following the start of the Syrian civil war:
8.… from around the start of the Syrian civil war in 2011, the area became gradually more dangerous as many Syrian refugees started to come into Lebanon through this area.
9.I heard from people living in our area that some of these refugees had had issues with the Syrian government and criminal groups acting in Lebanon had been sent to find them and kill them, as well as any Lebanese people who tried to help them. …
10.Some of the Syrian refugees also formed armed groups in order to protect themselves and the area became a lot more dangerous. Many of the Syrian refugees had lost their families and didn’t care if they became violent, fanatical, used drugs or if they harmed Lebanese people, because they had nothing else to lose. These groups would travel around the area picking fights without people for whatever reason they could find, including politics, religion and ethnicity.[7]
[6] Court book at page 107.
[7] Court book at pages 119 to 120.
The applicant went on to explain that his father became involved in a dispute regarding the family farm, although he was not sure who his father had been in dispute with.[8] He explained that at his arrival interview, he had told the Department that his father was in dispute with ‘larger tribes’ because this is what he believed at the time.
[8] Court book at page 120.
The applicant further stated that he did not know why the group wanted his family farm or what threats they had made, although he guessed that it was because his family farm was in a desirable location for the armed group to use as a base. He conceded that this group may not have even threatened his father directly, but maintained that:
15.… At that time, if these people ask you for something, you have no choice. If they want to take you, they take you. If they want to kill you, they kill you. If you resist, they kill you. No one can stop them and even the State army does not go into that area anymore because the government has lost control of it.
The applicant went on to elaborate on his earlier claim that he eventually left Lebanon with his father and his sister in 2013 because his family was being forced off its farm by armed groups operating in the area and it had become too dangerous for them to remain. Relevantly, at paragraph [16] of his statement, he stated:
16.… [My father] felt threatened and was afraid that the situation would escalate and he would put himself and us at risk if he stayed. My father was warned to leave the village and was afraid that the situation would be the same all over Lebanon and he could not set up a home somewhere else without being taken from him, so he decided to flee Lebanon and take me with him.
17.My father took me and my sister with him because he thought the eldest of his children would be at the greatest risk of becoming involved in his disputes and might be targeted by these groups as well.
The applicant noted that the situation in the area where he lived had become even worse after he left with his family, with there being an influx of armed groups of displaced persons from Syria, Iran, Iraq, Palestine and activity against these groups by Hezbollah.[9] He claimed that his mother, who remained in Lebanon, had told him that their former family home has since been broken into and their things stolen.
[9] Court book at page 121.
The applicant stated that he feared being targeted by these groups if he were forced to return, or otherwise being recruited by them to kill and threaten others. He also claimed that if he returned as a failed asylum seeker in Australia, there is a greater risk that these groups would target him as they ‘do not like the West’.[10]
[10] Court book at page 121.
On 14 June 2019, the applicant was invited to attend an interview with the Department on 9 July 2019.[11] On 10 July 2019, this interview was rescheduled to 1 August 2019.[12] Ultimately, the applicant did not attend either of the scheduled interviews with the Department.
[11] Court book at page 124.
[12] Court book at page 139.
On 16 August 2019, the applicant was notified that his application for a protection visa had been refused.[13] Relevantly, in the delegate’s decision record,[14] under the heading ‘Non-attendance at interview’, the delegate outlines the circumstances in which the applicant failed to attend the interviews scheduled for 9 July 2019 and 1 August 2019.
[13] Court book at page 142.
[14] See court book at pages 146 to 152.
In relation to the 9 July 2019 interview, the delegate indicated that the applicant was lawfully and correctly notified of the interview by post and subsequently contacted by phone on 4 July 2019 to confirm receipt of the letter notifying him of the interview. The applicant is recorded as having confirmed his postal address but advised that he had not received the letter, he was interstate for a short holiday and that he would not be able to attend the interview.
In relation to the 1 August 2019 interview, the delegate indicated that the applicant was again lawfully and correctly notified of the interview by post and subsequently contacted by phone on 29 July 2019 to confirm receipt of the letter notifying him of the interview. The applicant again confirmed his postal address but indicated that he did not receive the letter. Nevertheless, the delegate records that the applicant confirmed that he would be able to attend the interview. Ultimately, however, the applicant did not attend this interview and did not provide a reason for his failure to do so, nor did he request that the date be rescheduled prior to it taking place.
Referral to Authority on 22 August 2019
On 22 August 2019, the applicant was notified that the delegate’s decision had been referred to the Immigration Assessment Authority (‘the Authority’) for review.[15]
[15] Court book at pages 168 to 169.
At pages 188 to 191 of the court book are various file notes which record attempts made by the Authority on 5 September 2019 to contact the applicant by phone to orally invite him to attend an interview at the Authority.
The applicant was also sent an email on the same date to the email address he had previously provided the Authority.[16] In a file note dated 3 September 2019, the applicant is recorded as having confirmed that this was his email address, but that it ‘was ‘not working’ anymore and he needed to get a new one’.[17]
[16] Court book at page 196.
[17] Court book at page 187.
The file note of 3 September 2019 also records the applicant as indicating that he would be moving address soon and requesting that he be called again after 10 days, at which time he said he would know what his new address is. At the applicant’s request, the Authority then made numerous attempts to contact the applicant by mobile, none of which were successful.[18]
[18] Court book at pages 197 to 206.
The applicant was subsequently invited by letter dated 11 September 2019 to attend an interview at the Authority scheduled for 24 September 2019 at 1:00pm, which was sent to the applicant by registered express post.[19] The letter inviting the applicant to this interview stated that if the applicant was unable to attend the interview in person, arrangements could be made for him to be interviewed by telephone and the applicant was invited to contact the Authority if he wished to participate by telephone. The applicant did not attend the interview scheduled for 24 September 2019, nor did he request that the interview be conducted by telephone.[20]
[19] Court book at pages 192 to 193.
[20] Court book at page 209.
Decision of Authority of 25 September 2019
On 25 September 2019, the applicant was advised by letter and email that the Authority had determined to affirm the decision under review.[21]
[21] Court book at pages 211 and 226.
The Authority’s decision record of 25 September 2019 is at pages 214 to 226 of the court book.
Application for extension of time filed on 5 February 2021
On 5 February 2021, the applicant filed an application for an extension of time in which to make an application for judicial review of the Authority’s decision of 25 September 2019.[22]
[22] Respondent’s Outline of Submissions filed on 8 August 2022 at paragraph [9].
On 31 August 2021, Judge Street made orders by consent of the parties for the application for extension of time to be granted, for the Authority’s decision of 25 September 2019 to be quashed and for the matter to be remitted back to the Authority for reconsideration.[23]
[23] Court book at pages 239 to 240.
The notation to those orders, made by consent, noted as follows:
On 3 September 2019, the Immigration Assessment Authority (“the Authority”) contacted the applicant by telephone. The applicant advised that he had not received the decision of the delegate of the first respondent or any correspondence from the Authority. Further, he informed the Authority that the best way to contact him was by telephone and that his email address did not work. Moreover, the applicant explained that he would be moving in 10 days and asked that the Authority contact him at that time by telephone to confirm his new address. The Authority agreed that it would do this: cf. Somjich v Minister for Home Affairs (2019) 168 ALD 219; [2019] FCA 1921 at [57] per Rangiah J. However, the Authority subsequently attempted repeatedly to contact the applicant using the wrong telephone number, and so was unsuccessful in reaching him from then on. On 11 September 2019, the Authority issued the applicant an invitation to his last known street and email address to attend an interview to give new information pursuant to s 473DC of the Migration Act 1958 (Cth) (“the Act”). The applicant ultimately did not attend the scheduled interview on 24 September 2019, and so the Authority proceeded to make its decision without taking further action pursuant to sub-s 473DF(4) of the Act. In the circumstances of this case, the Authority acted legally unreasonably in exercising that discretion: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [84] per Nettle and Gordon JJ.
Remittal to Authority on 21 September 2021
On 21 September 2021, having confirmed that the applicant was being held in detention at Villawood Immigration Detention Centre in New South Wales, the Authority notified the applicant, via letter delivered by hand to the applicant at the detention centre, that his protection visa application had been referred to the Authority.[24]
[24] Court book at page 246.
Relevantly, this letter was accompanied by a copy of the Authority’s Practice Direction, which specifies that the applicant is permitted to provide written submissions on why he disagrees with the Department’s decision and on any claim or matter he presented to the Department that was not considered. The Practice Direction also specifies the timeframe in which any submissions were to be provided, being within 21 days of the date on which his case was referred to the Authority by the Department.
On 22 September 2021, the Authority was advised by email by an officer of the Department that their letter of 21 September 2021 was delivered to the applicant by hand on the morning of 22 September 2021.[25] The officer also advised that he spoke to the applicant by phone and the applicant confirmed that the letter had been delivered to him. Attached to this letter was an email from the applicant on 22 September 2021 at 10:44AM, in which he states, ‘Thank you I have received it’.[26]
[25] Court book at page 253.
[26] Court book at page 255.
On 28 October 2021, the Authority wrote again to the applicant to advise him that despite their previous correspondence of 21 September 2021 advising him of the process for making submissions, they had not received any submissions from him to date.[27] The letter further put the applicant on notice that if he wished to make any submissions, that he was required to do so by 5 November 2021 and that the Authority may make a decision at any time after this date. This letter was again provided to the detention centre to deliver to the applicant by hand.[28]
[27] Court book at page 259.
[28] Court book at page 258.
On 29 October 2021, the applicant called the Authority to query an email that he had received from the Authority.[29] The file note of this date records an officer of the Authority explaining to the applicant that the purpose of the correspondence was to inform him that the Authority was reconsidering his case following the court outcome and that if there was any new information or submissions that he wished to make, he was to provide it promptly before the Authority finalised his matter.
[29] Court book at page 261.
Relevantly, the file note records the applicant having provided the following response:
… [The applicant] said he won’t be providing to the IAA. He said that he arrived by boat under dangerous conditions because his country was terrible and it is still…not good. He said he finds it hard to understand the IAA decision given he was the youngest on the boat and many of the people he came with by boat have now received visas. He said that his sister got a visa. … [The applicant] said there was nothing more he wanted to add but requested again the IAA make his decision quickly because he has now been detained for 18 months.’ (emphasis added)
In this call, the applicant had also indicated that he had been moved to a new detention centre in Melbourne. At page 261 of the court book is correspondence between the Authority and various authorities confirming that the applicant has been transferred into criminal custody.[30]
[30] Court book at page 261.
Relevantly, on 3 November 2021, the Authority contacted Victoria Corrections and Sentencing, following which it confirmed that the applicant was being held at Port Phillip Prison. The Authority also confirmed the postal and email address of the Port Phillip Prison to enable it to provide correspondence to be delivered by hand to the applicant.[31]
[31] Court book at page 267.
Decision of Authority of 1 November 2021
By letter dated 1 November 2021, the Authority notified the applicant that the Authority had determined to affirm the decision under review. On 4 November 2021, the Authority sent an email to Port Phillip Prison requesting that the letter of 1 November 2021 and attached decision be delivered to the applicant by hand as soon possible and provided a phone number to contact in the event that the prison could not facilitate this request.
There is no record in the court book of any further correspondence between the Authority and Port Phillip Prison, indicating that the correspondence had been delivered to the applicant or otherwise. There is also no evidence that the Authority attempted to serve this documentation on the applicant by any other means than delivery by hand.
Events following Authority decision being made
On 24 December 2021, notwithstanding that the Authority had already made its determination, the applicant, via a legal representative from Victoria Legal Aid, Mr Babakarkhil, contacted the Authority via email to request further time to provide submissions in respect of his protection visa application.[32]
[32] Court book at pages 286 to 287.
In this email, Mr Babakarkhil describes the decline in the applicant’s health whilst in immigration detention. He also refers to various other matters which he submitted warranted an extension of time to provide submissions and requested that the Authority refrain from making a decision until after 1 February 2022 at the earliest.[33]
[33] In his email, Mr Babakarkhil referred to the date of ‘1 February 2021’. In the circumstances, I take this to be an error, and that the applicant was in fact requesting a decision after 1 February 2022.
Relevantly, in this email, Mr Babakarkhil indicated that the applicant was ‘recently transferred from Villawood Immigration Detention Centre to MITA in Melbourne’. On 24 December 2021, the Authority sent an email to the Melbourne Immigration Transit Accommodation (‘MITA’) to request that the notification letter of 1 November 2021 and attached decision be provided to the applicant, or otherwise advise if the applicant was not being held at MITA.[34]
[34] Court book at page 292.
A follow up email was sent by the Authority to MITA on 31 December 2021 requesting confirmation that the documents had been provided to the applicant.[35] Later that day, a response was sent from MITA which confirmed that the applicant ‘advised that he received a paper copy of the outcome while he was in prison’. MITA further advised that they also provided him with an electronic copy of the decision for his records.
[35] Court book at page 293.
On 4 January 2022, a representative from Refugee Legal sent an email to the Authority on the applicant’s behalf, requesting confirmation as to whether his matter was still under review.
Authority decision
The Authority’s decision record of 1 November 2021 is at pages 273 to 285 of the court book.
At paragraphs [1] to [2], the Authority sets out the procedural history of this matter, including that this was the Authority’s second consideration of this application, the matter having been remitted back to the Authority by consent from the Federal Circuit Court (as it then was).
At paragraphs [3] to [7], the Authority noted it had regard to the material given by the Secretary pursuant to section 473CB of the Act. At paragraph [4], the Authority went on to summarise the attempts made by the Department to contact the applicant to invite him to an interview prior to making its decision in August 2019. At paragraph [5], the Authority summarised the attempts made by the Authority to contact the applicant to invite him to an interview prior to making its decision to affirm the delegate’s decision in September 2019. As outlined earlier in these reasons, the applicant did not attend either scheduled interview.
In relation to the current review before it, at paragraph [6], the Authority summarises the attempts made by the Authority to advise the applicant that his matter had been remitted back to the Authority for consideration and that the applicant could provide submissions by 5 November 2021 if he wished to do so.
At paragraph [7], the Authority determined to proceed on the information before it, notwithstanding that the applicant had not attended any of the scheduled interviews or provided any further submissions in support of his application. Relevantly, it found that:
7.The applicant was aware of the scheduled interviews with the Department and, in the case of the rescheduled interview, indicated he would attend but then did not do so and did not contact the Department. Although he stated he did not receive various correspondence at his second address, he confirmed on a number of occasions to the Department and the IAA that it was his correct address. There is no evidence that any of the correspondence to his second address has been returned to sender. The IAA’s invite was sent to the correct address in 2019, although its exercise of discretion to proceed on the material appears to have been misinformed by the unsuccessful attempts to make phone contact. It is evident that the applicant subsequently received the delegate’s decision and received information about the reconsideration of his case by the IAA. He was advised he could provide further information and his views on why the delegate’s decision was wrong to the IAA. The applicant has clarified not only that he will not be providing anything to the IAA but has asked for a decision to be made as soon as possible. …
At paragraph [8], the Authority summarises the applicant’s claims for protection.
At paragraph [10], the Authority sets out the applicant’s background.
At paragraphs [11] to [15], the Authority summarises the applicant’s claims to fear harm as a result of the problems in Lebanon, including the dispute relating to his father’s farm which he says prompted his father to leave Lebanon with the applicant and the applicant’s sister. At paragraph [16], the Authority accepts the applicant’s claims, noting that the applicant has been largely consistent with his protection claims and background details.
At paragraphs [17] to [18], the Authority outlines the circumstances in which the applicant and his family left Lebanon and summarises the applicant’s claims to fear harm as a result of being a failed asylum seeker.
At paragraphs [19] and [20], the Authority outlines the legislative criteria to which it must have regard when determining the applicant’s claim for refugee status.
At paragraphs [21] to [29], the Authority considers the country information relevant to its assessment of whether the applicant has a ‘well-founded fear of persecution’. Relevantly, at paragraph [21], it considers the country information in relation to the risk of persecution in Lebanon, or lack thereof, for reasons of religion. At paragraph [22], the Authority outlines the security situation in Lebanon and makes the following observations in relation to the risk of harm to the applicant should he return to Lebanon:
23.… Although the applicant’s father had to give up their farm and was warned to leave the village because of his dispute with an armed group, the applicant does not claim his mother and siblings who remained in B village had been harmed or threatened by the armed group or anyone else since he left Lebanon with his father and sister in 2013. Similarly, although he stated he fears for his family in the area as it is dangerous, he has not claimed that they have suffered any attacks, security incidents or any other harm due to the general security situation in the area, before or since his departure in 2013. Additionally, the country information discussed above indicates that although there was an upsurge in violence in Lebanon following the start of the war in Syria in 2011, more recently serious violence has significantly reduced, and such incidents are generally isolated ones.
At paragraph [24], the Authority considers the applicant’s concerns about being forced to join an armed group should he return to Lebanon in light of the country information. It noted that:
24.… the country information does not support a conclusion that forced recruitment is used by militant groups in Lebanon. He is Sunni. Akkar is a Sunni majority area. Nor does he claim that his family in B village has suffered any harassment, discrimination, or other harm as Sunnis since he left Lebanon. … there is no suggestion that he and his family were unable to subsist while he was previously in Lebanon or that his immediate family in B village has, despite the family losing the farm, been unable to subsist since he, his father and sister left in 2013. The applicant may take some time to re-establish himself in Lebanon. However, he is a young man who has shown he is resilient and resourceful by adapting to life in Australia, after arriving as a minor and while separated from his mother and most of his siblings. Given his mother and most of his siblings are in B village, together with him having remained in contact with his family in Lebanon, I am satisfied his family in B village would be able to provide him with at least a basic level of support while he re-establishes himself in Lebanon.
Ultimately, while the Authority accepted the applicant’s claims, it was not satisfied, based on the country information before it, that the applicant faced a real chance of harm if returned:
25.… Given the country information about current country conditions and the applicant’s own profile and personal and family history, I am not satisfied that there is a real chance of harm to the applicant due to the general security situation, including the presence of armed groups in the area, because of the former dispute and loss of the family farm, as a Sunni, or for any other reason, if he returned to Lebanon, now or in the reasonably foreseeable future.
At paragraphs [26] to [28], the Authority considers the applicant’s claims to fear harm as a result of being a failed asylum seeker in light of the country information. In circumstances where the country information indicated that it is not a crime for Lebanese citizens to seek asylum abroad, no significant stigma attaches to failed asylum seekers and there was no evidence to suggest that they are subject to any particular official or societal discrimination, the Authority was not satisfied that the applicant faced a real chance of harm as a result of being a failed asylum seeker in Australia, either now or in the reasonably foreseeable future.
At paragraph [31], the Authority goes on to consider Australia’s complementary protection obligations. At paragraphs [32] to [33], the Authority outlined the relevant legislative criteria to which it must have regard when considering whether the applicant suffered a ‘real risk of significant harm’ such as to merit complementary protection. For the same reasons as those provided in respect of assessing the applicant’s claim for refugee status, the Authority did not consider that there were substantial grounds to find that the applicant met the relevant criteria for complementary protection.
Therefore, the Authority affirmed the decision not to grant the applicant a protection visa.
Extension of time application
As stated, the applicant’s application for judicial review has been filed outside the time limit for such applications.
Section 477(1) of the Migration Act 1958 (Cth) provides that an application to this court in relation to a migration decision must be made within 35 days of the migration decision. Any such application therefore should have been filed on or before 9 December 2021. In fact, the applicant filed an application for judicial review in this court on 14 January 2022.
Therefore, the applicant filed his application some 36 days out of time.
On 3 May 2022, orders were made by Registrar Carney listing the matter for final hearing on a date to be fixed. Orders were also made for the filing of trial material, including that the applicant was to file written submissions, any amended application with proper particulars of the grounds of the application and any additional evidence on which he sought to rely at least 28 days prior to the hearing.
Ultimately, the matter came on for hearing before me on 22 August 2022. The applicant appeared on his own behalf with the assistance of an Arabic interpreter. Despite the orders of 3 May 2022, at the commencement of the hearing before me, the applicant confirmed that he had not filed any further material prior to the hearing.
Consideration
Section 477(2) of the Act provides that the court can extend the 35 day time limit for filing an application for judicial review if it is satisfied that it is in the interests of the administration of justice to do so. There are no prescribed factors which must be considered in determining how that discretion is to be exercised. However, it is well settled that the court must have regard to a range of factors including:
(a)the length of the delay and the explanation for that delay;
(b)any prejudice to the Minister in granting the extension of time; and
(c)whether there is any merit to the grounds raised by the applicant’s substantive application.[36]
[36] SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46]-[48].
Counsel for the Minister also directed the court to the recent High Court decision in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (‘Katoa’), in which the High Court endorsed these factors as being commonly referred to by the courts when determining an extension of time application.
Length and explanation for delay
In his initiating application, the applicant raised the following grounds for an extension of time:
1.I only realised that the IAA had refused my application on unaware that the IAA had made its decision to reject my application in late December 2021.
2.I was being held in a prison and had only recently been transferred to immigration detention facility where I had no access to legal representation.
3.If I am unable to file this application, I will be in immigration detention indefinitely, or deported to Lebanon where I fear for my life.
In his affidavit accompanying his protection visa application, the applicant added to these grounds, stating at paragraph [4] that:
4.I was unable to file this application within 35 days because I had been transferred from prison to a detention facility in New South Wales. I was then transferred to MITA in Broadmeadows, Victoria. When I was transferred, I was required to quarantine for two weeks. I was in complete isolation and did not have access to my possessions because they were in lockup.
At the hearing before me, the applicant stated that he was in jail at the time that the notification of the Authority’s decision was sent to him.[37] He then said that following his release from jail, he was not able to fill in any forms to commence proceedings in this court before he was placed back into detention. When asked when he returned to detention, he estimated that he had spent two months in jail before being released back into detention towards the end of 2021.
[37] Court transcript at page 4.
In response to the Minister’s submissions on this issue, the applicant added that after he had been released to detention, he had attempted to contact legal aid to obtain assistance in gathering information to lodge an application in this court, however, he was unable to access a computer or any court forms whilst ‘locked in quarantine’.[38]
[38] Court transcript at pages 15 to 16.
The Minister submits that the applicant’s explanation for the delay is unsatisfactory in circumstances where the applicant was provided with a copy of the Authority’s decision and decision record on 4 November 2021.[39] The Minister further submits, and I accept, that insofar as the applicant’s explanation for delay relates to his inability to acquire legal assistance, this is not a sufficient explanation for delay.[40]
[39] Respondent’s Outline of Submissions filed on 8 August 2022 at paragraph [24].
[40] Respondent’s Outline of Submissions filed on 8 August 2022 at paragraph [25]; see Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [35] per Wigney J.
The Minister relies upon an email of 4 November 2021 sent from the Authority to Port Phillip Corrections as evidencing that the applicant was notified of the decision being made on 4 November 2021. As noted above, that email only requests that the Authority’s decision be hand-delivered to the applicant that day, but there is no evidence that that was complied with.
The applicant disputes this and states that he was not aware of the decision being made until ‘late December 2021’. While the applicant does not specify on which date he says this occurred, he may be referring to when he was provided with a copy of the Authority’s decision on 31 December 2021 after he had been transferred to MITA. This is inconsistent, however, with the indication given by an officer of MITA in the email of 31 December 2021 referred to above, in which it is stated that the applicant indicated that he had already ‘received a paper copy of the outcome while he was in prison’.[41] In any event, it is clear that the applicant was aware of the Authority’s decision at least as at 31 December 2021.
[41] Court book at page 295.
I further note that the timeline of the applicant’s transfer from Villawood Immigration Detention Centre is not entirely clear. It appears that the applicant was transferred from Villawood to Port Phillip Prison at some point in October 2021. He submitted that he remained there for some two months, being until some point in December 2021, until he was transferred to MITA where he was initially placed into quarantine for two weeks and had no access to his personal belongings or any other means by which he could commence proceedings in this court.
This explanation, and timeline more generally, is supported by correspondence in the court book and referred to above. For example, in his email to the Authority of 24 December 2021, Mr Babakarkhil indicated that the applicant was, at that time, ‘currently in quarantine…and has access to very little resources. For example, he only managed to contact Legal Aid because he was allowed to borrow a telephone charger for his mobile phone’.[42] The Minister also does not appear to dispute the applicant’s version of events in relation to the timing of his transfers between detention centres or that the applicant had been placed in quarantine for two weeks. The Minister only submits that this explanation for the delay is not satisfactory.
[42] Court book at page 286.
I accept that for a period of two weeks in December 2021, the applicant was placed in quarantine in circumstances which significantly restricted his ability to commence these proceedings. Therefore, even if I accepted the Minister’s submission that the applicant was aware of the Authority’s decision as of 4 November 2021, I consider that there were circumstances which contributed to the delay when the applicant was transferred to MITA in December 2021. While this does not explain the applicant’s failure to commence proceedings prior to being transferred and placed in quarantine, I consider that in November 2021 there was some disruption to the applicant’s life, having been recently transferred to Port Phillip Prison from an immigration detention centre in New South Wales. Moreover, the applicant says that whilst he was in prison, he did not have access to any documentation, assistance or other resources by which he was able to file an application in this court.
In addition, as indicated, it is not entirely clear as to whether the applicant was only made aware of the decision in late December 2021, as he submits. Although there is some correspondence, referred to above, which indicates that he had in fact been provided with a hard copy of the decision whilst in Port Phillip Prison, it is not clear whether he understood the nature of the decision or its contents in circumstances where he instructed Victoria Legal Aid in early December 2021 to request that the Authority extend the timeframe for its review.
Ultimately, I accept that the applicant has provided an explanation for his delay which is not entirely without merit, or at least, cannot entirely be described as ‘unsatisfactory’. This is particularly so when regard is had to the fact that the applicant did take steps within a relatively short period of time to obtain legal assistance from Victoria Legal Aid.
Prejudice to the Minister
The delay is of some 36 days. As the Minister submits, this is not a trivial amount of time, however, nor is it particularly lengthy. In the circumstances, the Minister correctly concedes that he would not suffer specific prejudice as a result of the application for extension of time being granted, although that does not of itself warrant an extension being granted.
In the circumstances, these two factors taken together weigh somewhat in favour of the application for extension of time being granted. However, in considering whether the interests of the administration of justice would be served by an extension of time, some consideration ought to be had to the merits to the applicant’s substantive grounds of review.
Merits to the grounds of review
The applicant raises the following three grounds of review in his application:
1.The IAA committed a legal error in failing to notify me that it was considering my application.
2. The decision of the IAA is affected by legal unreasonableness.
3. The IAA adopted the wrong legal test.
At the hearing before me, the applicant made the following further submissions:
(a)as to ground 1, he said that he had received many letters from the Authority, but that he wasn’t exactly sure of what was required of him from those letters, such as where to send his submissions or required documentation;[43]
(b)as to ground 2, he takes issue with the Minister’s finding that he would not be subject to any harm should he return to Lebanon, which he describes as ‘unreasonable’, and questions where this information was obtained. He further questioned why he would remain in detention for four years if it was safe for him to return to his home country.[44]
(c)as to ground 3, when asked what he meant when he said the Authority had applied the wrong legal test, the applicant re-iterated his submissions in relation to ground 2, namely that his application had been rejected on ‘unreasonable grounds’.[45]
[43] Court transcript at page 16.
[44] Court transcript at page 17.
[45] Court transcript at page 18.
Before I turn to consider the merits of each of these grounds, it is appropriate to say something about the nature of this assessment when considering applications for extension of time. In Katoa, the Full Court of the High Court considered whether a court considering an application for extension of time would commit jurisdictional error by engaging in more than an impressionistic assessment of the merits of the proposed grounds of review.
It held that there are some circumstances where it will be appropriate for the court to engage in more than an impressionistic assessment of the merits. At paragraph [18], Kiefel CJ, Gageler, Keane and Gleeson JJ gave the following example:
18.… 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. (citations omitted)
I therefore accept that in this case, in considering the applicant’s grounds of review in the context of whether to extend time, it is appropriate to consider the nature of the Authority’s decision and the evidence to which it had regard in reaching its conclusions, notwithstanding that this may involve more than an impressionistic view of the grounds of review.
Grounds of review
Ground 1
By ground 1, the applicant asserts that the Authority committed a legal or jurisdictional error by failing to notify him that his application was under review.
This ground has no reasonable prospect of success. As is evident from the summary set out above, there is various correspondence in the court book which supports a finding that the applicant was, in fact, notified that his application was under review following its remittal back to the Authority from the Federal Circuit Court.
In summary, it is clear from the evidence in the court book that:
(a)a copy of the letter confirming that the matter had been referred to the Authority was hand-delivered to the applicant on 22 September 2021. It is said that the applicant confirmed this in his email response of the same date, ‘Thank you I have received it’.[46]
(b)in a phone call with an officer of the Authority, the applicant confirmed that he had received correspondence from the Authority but that he did not understand what it related to.[47] He was advised that the effect of the correspondence was to inform him that his application was under review and that should he wish to provide any submissions in support of that application, that he was to do so as soon as possible.
[46] Court book at pages 253 to 256.
[47] Court book at page 260.
At the hearing before me, the applicant was referred to both his email response and the file note of his conversation with the Authority referred to above, and he did not dispute their contents or otherwise claim that events occurred differently from how they were put by the Minister. I am therefore satisfied on the face of the evidence that the applicant was made aware that his application was under review at the Authority.
As such, it follows that the applicant does not have reasonable prospects of successfully showing that the Authority committed a legal error in failing to notify him that his application was under review, the Authority in fact having notified him of such.
For completeness, the Minister further submitted that even if I had found that the applicant was not notified that his application was under review, the Authority was not under any legal obligation to do so. The court was referred to the decisions of Minister for Home Affairs v DUA16 (2019) 273 FCR 213 and EUW17 v Minister for Immigration [2020] FCA 744 which are said to be authority for this proposition.
In circumstances where I consider that the Authority did inform the applicant of the review, as well as his ability to provide any submissions he considered relevant, it is not necessary to consider any obligation, or lack thereof, on the Authority to have notified the applicant that his application was under review. It suffices to say that the applicant was notified of such, that he could have made any submissions he wished prior to 5 November 2021 and that he in fact indicated to the Authority in his phone call of 29 October 2021 that he did not intend to do so, notwithstanding later correspondence sent to the Authority on his behalf that he should be provided with an opportunity have an interview.
In all of the circumstances, I find that ground 1 has no reasonable prospects of success.
Ground 2
By ground 2, the applicant states that the Authority’s decision is affected by legal unreasonableness. No particulars are provided in respect of this ground in his application.
However, as indicated above, at the hearing before me, the applicant explained the unreasonableness by reference to the Minister’s (and not the Authority’s) finding that he would not be at a real chance of harm or real risk of significant harm if returned to Lebanon. This court does not have the jurisdiction to review a decision by the Minister’s delegate.[48] As such, this ground, in so far it relates to the delegate’s decision, does not have any reasonable prospects of success.
[48] Migration Act 1958 (Cth) s 476(2)(a).
Making allowances for the applicant, whose first language is not English and who is navigating a foreign legal system, I accept that by this submission, the applicant likely meant to refer to the Authority’s decision, as initially stated in his application. Even so, I am still not satisfied that this ground had any reasonable prospects of success.
As summarised above, the Authority accepted the applicant’s claims but ultimately based its finding on the available country information before it. Notwithstanding that at the hearing before me, the applicant queried where this information had been obtained, ultimately the choice, assessment of, and weight to be given to country information is a factual matter for the Authority, not the court on review.[49]
[49] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] to [13].
At paragraphs [23] to [25], the Authority sets out its findings in relation to the applicant’s claims to fear harm as a result of the security risks in his home town, as well as in Lebanon more generally. At paragraphs [27] to [28], the Authority sets out its findings in relation to the applicant’s claims to fear harm as a result of being a failed asylum seeker in Australia. In reaching these findings, it is clear that the Authority had regard to and considered the country information before it, which ultimately indicated that the general security situation had stabilised in Lebanon over the past few years and that incidents of serious violence were generally isolated. The findings made by the Authority were therefore reasonably open to it to make and were not legally unreasonable as claimed.
Ultimately, the applicant’s complaint in relation to the Authority’s finding effectively seeks impermissible merits review.
Ground 2 therefore has no reasonable prospects of success.
Ground 3
By ground 3, the applicant asserts that the Authority adopted the wrong legal test. As with the previous grounds, this ground was not particularised. However, as outlined above, at the hearing before me, the applicant indicated that in relation to this ground, he relied upon his previous submission that his application had been rejected on unreasonable grounds.
On this basis, I refer to and repeat my reasons above for finding that this ground is similarly misconceived and has no reasonable prospect of success. In any event, it is clear on a plain reading of the Authority’s reasons that it assessed the applicant’s application for a protection visa by reference to the correct legal tests in sections 36(2)(a) and 36(2)(aa) of the Act. The applicant has not in his application or oral submissions indicated what test the Authority ought to have applied. In these circumstances, I am not satisfied that there is merit to this ground which would support an extension of time being granted.
Conclusion
In circumstances where none of the grounds of review have a reasonable prospect of success, it would not be in the interests of justice to extend time for this application. For each of these reasons, it is therefore appropriate to dismiss the application with costs.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 3 November 2022
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