Agz19 v Minister for Home Affairs
[2019] FCCA 149
•23 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGZ19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 149 |
| Catchwords: MIGRATION – Application for an extension of time – application for judicial review made one year and eleven months out of time – permanent protection visa – where Applicant’s substantive application has no reasonable prospect of success – extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.66, 198, 412, 477 |
| Cases cited: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228 Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148 Minister for Immigration and Citizenship v SZMTR [2009] FCAFC 186 Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 WZAWB v Minister for Immigration & Anor [2016] FCCA 1345 |
| Applicant: | AGZ19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 185 of 2019 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 23 January 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 23 January 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor acting as Counsel for the First Respondent: | Ms Whittemore |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application for an interlocutory injunction is dismissed.
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $2,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 185 of 2019
| AGZ19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
By application filed on 22 January 2019, the Applicant seeks an extension of time to apply for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 15 February 2017. By that decision the Tribunal found that it had no jurisdiction to review a decision of a delegate of the First Respondent made 19 October 2016 to not grant the Applicant a permanent protection (XA-866) visa (‘the visa’).
The Applicant also sought an urgent interlocutory injunction restraining the Minister of Home Affairs (‘the Minister’), by himself or by his department, officers, delegates or agents, from removing the Applicant from Australia. The Applicant is scheduled to be removed from Australia to Nairobi, Kenya at 3.25pm on 23 January 2019.
The First Respondent is compelled by s.198(6) of the Migration Act 1958 (Cth) (‘the Act’) to remove the Applicant from Australia as soon as reasonably practicable, absent an injunction. The First Respondent submits that an injunction should not issue as the balance of convenience does not favour it and there is no serious question to be tried for the Applicant.
The First Respondent further submits that the application for an extension of time for judicial review pursuant to s.477(2) of the Act should be dismissed.
The application filed 22 January 2019 set out the grounds of application for an extension of time to be as follows:-
“1. The applicant was unable to access legal representation and faced destitution
2. The applicant’s wife faced health complication due to pregnancy
3. The applicant would suffer sever prejudice if the extension were not granted, and the Department or tribunal would not suffer such prejudice by the grant of an extension of time.”
The Applicant’s application for judicial review contained grounds of application in respect of the substantive application as follows:-
“1. The Administrative Appeals Tribunal erred at law by finding the applicant failed to lodge a valid application within the 28-day time limit.
Particulars
a) The applicant submitted valid applications for review that were addressed to AAT in Perth and received by the Department of Immigration and Border Protection (Department) prior to the last day for lodging the applications for review.
b) The Department and the AAT are both arms of the executive and the AAT was taken to have received the applications when The Department did.
2. The AAT’s decision not to consider the review applications was legally unreasonable.
3. The applicant was denied procedural fairness by AAT and the AAT did not allow the applicant an opportunity to be heard.”
History
The Applicant and his wife, his wife being the secondary Applicant, and their dependant Applicant daughter (in respect of the visa sought) are each citizens of Kenya. The primary Applicant (‘the Applicant’) and his wife arrived in Australia on 28 November 2009 on the Applicant’s student (TU-572) visa. It expired on 15 March 2012. Between that date and June 2015, further (TU-572) student visas were granted to the Applicant. On 23 June 2015, the Applicant filed an application for the visa.
The Applicant is currently in immigration detention (Melbourne Immigration Transition Accommodation) and has been in immigration detention in Australia since October 2017. The Applicant submitted this day that his wife and their two daughters were living in the community in Western Australia.
The Tribunal Decision
Matters going to the discretion to grant an injunction are, as submitted by the First Respondent, well settled. In summary they are:-
a)whether, having regard to the judicial review application, there is a serious question to be tried, or whether there is a probability that at trial the Applicant would be entitled to relief;
b)whether the Applicant would suffer irreparable injury if the injunction was not granted; and
c)the balance of convenience.[1]
[1] Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148, 11.
The First Respondent concedes that the Applicant’s removal from Australia would constitute action against the Applicant for which damages would be an inadequate remedy. However, the First Respondent submits that consideration alone is insufficient in itself to grant the injunction.
The Court accepts that the Applicant’s removal from Australia would constitute action against the Applicant for which damages would be an inadequate remedy. The Court finds, however, that the balance of convenience does not favour the grant of an injunction in this application, and that is so because the Applicant is seeking to pursue a judicial review case with no prospects of success.
The application for judicial review was filed on 22 January 2019. That is a period of approximately one year and 11 months outside the 35 days’ time limit prescribed by s.477(1) of the Act. Section 477(2) of the Act provides that the Court may order that the 35-day period be extended as the Court considers appropriate if, amongst other things, the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
In looking to the Court’s necessary satisfaction, the Court considers firstly the length of the Applicant’s delay in filing his application for judicial review. It is, as submitted by the First Respondent, “inordinate” such that an extension of time would only be granted in an exceptional case.[2]
[2] Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470
The Court determines that this is not an exceptional case.
Firstly, the Applicant’s explanation for his delay in filing these proceedings – being that he was unable to access legal representation and that his wife faced health complications due to pregnancy – are, on the facts presented here, inadequate explanations for the delay.
An inability to obtain legal advice is not an adequate explanation for the delay.[3] The Applicant has no right to legal representation.[4] It was open to him to seek assistance from Legal Aid or a community centre or indeed, to represent himself. His claim to be destitute as he had no work rights nor resources to pay for any representation does not adequately explain his delay in filing his application. It was open for him at any time to proceed as a litigant in person and to seek a waiver of Court fees.
[3] Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470; WZAWB v Minister for Immigration & Anor [2016] FCCA 1345, 86-90.
[4] SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234, 24.
The Applicant’s wife’s health complications during her pregnancy also do not adequately explain the inordinate delay. In submissions made this day, the Applicant indicated, in response to a question asked by the Court, that his second daughter was born in April 2017. This signified the end of the wife’s pregnancy. The Applicant nevertheless took a further 21 months, approximately, to file his judicial review application. The Applicant submitted further that his wife has ongoing health complications, and is now applying for a medical visa. The Applicant stated that although he was not aware of the precise medical term which describes his wife’s illness, he nevertheless could indicate to the Court that she had a thyroid health complication together with other ongoing health complications.
Even if the wife’s state of health both during her pregnancy and since was accepted by the Court to be that as described by the Applicant, without any supporting evidence, the Applicant put before the Court no adequate explanation as to why his wife’s health difficulties resulted in an inability on his part to file his judicial review application. On this ground, the Applicant’s inordinate delay has not been adequately explained.
Secondly, it is well established that a Court should not exercise its discretion to extend time if the proposed substantive application has no reasonable prospect of success.[5]
[5] SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, 39.
The question for the Court is whether the Tribunal was correct to find that it did not have jurisdiction to review the delegate’s decision. The First Respondent submits that the Tribunal was in fact correct to so find. No issue is taken by the Applicant with the notification of the delegate’s decision to his authorised recipient, nor with the fact that the Applicant received the delegate’s decision within the requisite time as legislatively provided for.
Pursuant to s.66(1) of the Act, the Minister is to notify an Applicant of a decision to grant or refuse a visa in the prescribed way. The notification sent to the Applicant in the circumstances of this case complied with s.66(2)(ii)(d) of the Act in that it:-
a)stated that the Applicant was entitled to “apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision”;
b)stated that “an application for merits review of this refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days”; and
c)stated where the application could be made.
By virtue of s.412(1)(b) of the Act and reg.4.31(2) of the Migration Regulations (1994) (Cth) (‘the Regulations’), an application to the Tribunal for review of a Part 7 reviewable decision must be “given to the Tribunal” within 28 days of the date on which the Applicant was notified of the decision.
The Tribunal’s jurisdiction to review the delegate’s decision was dependent upon the Applicant lodging a valid application within the prescribed time period.[6] Importantly to the facts of this case, the Tribunal had no power or discretion to extend time beyond the 28 day time limit prescribed by the Act.[7] Once outside that time limit, the grounds of judicial review reliant on legal unreasonableness and a denial of procedural fairness to the Applicant by not allowing him an opportunity to be heard are misplaced.
[6] Minister for Immigration and Citizenship v SZMTR [2009] FCAFC 186, 12.
[7] Beni v Minister for Immigration & Border Protection [2018] FCAFC 228.
Regulation 4.31AA is as follows:-
“4.31AA Giving application to the Tribunal
(1) An application for review by the Tribunal of a Part 7‑reviewable decision must be given to the Tribunal by:
(a) leaving it with an officer of the Tribunal at a registry of the Tribunal, or with a person specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or
(b) sending it by pre‑paid post to a registry of the Tribunal; or
(c) having it delivered by post, or by hand, to an address specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or
(d) faxing it to a fax number specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or
(e) transmitting it to a registry of the Tribunal by other electronic means specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975.
(2) An application made to the Tribunal in accordance with paragraph (1)(a) or (b) is taken to have been received by the Tribunal at the time the Tribunal receives it.
(3) An application made to the Tribunal in accordance with paragraph (1)(c) is taken to have been received by the Tribunal at the time it is received at the relevant address.
(4) An application made to the Tribunal in accordance with paragraph (1)(d) is taken to have been received by the Tribunal at the time it is received at the relevant fax number.
(5) An application made to the Tribunal in accordance with paragraph (1)(e) is taken to have been received by the Tribunal at the time the Tribunal receives it.”
The Applicant concedes that he did not provide his application to the Tribunal by any of the methods as provided for in reg.4.31AA of the Regulations. The Applicant accepts that the Tribunal received his application outside the prescribed time period. It did not receive the application to review the delegate’s decision until 28 November 2016. Further the Applicant acknowledges that he failed to lodge with or give to the Tribunal his application for review in accordance with the practice direction issued by the Tribunal on 14 October 2016, which had effect from 24 October 2016.
On the Applicant’s own evidence, on 22 November 2016, he placed in the Department of Immigration and Border Protection’s (‘the Department’) DropBox his review application, which he claimed to be contained in an envelope which he had addressed to the Tribunal. On his own evidence, he failed to lodge with or give to the Tribunal his application in the means legislatively prescribed.
The Applicant made an unfounded claim that his application had been maliciously withheld by the Department, because the Department deliberately delayed the application forwarding it on to the Tribunal such that the Tribunal’s receipt of his application was out of time. There is no evidence that supports this scenario. The Applicant’s admission that he placed his application in a DropBox in a departmental office is evidence of his failure to comply with the legislative requirements.
The Applicant was afforded common law procedural fairness as set out in the Statement of Decision and Reasons (‘the Decision Record’) of the Tribunal of 15 February 2017. As set out in paragraphs 4 and 5 therein, the Tribunal said as follows:-
“4. A Tribunal officer wrote to the applicants on 6 January 2017, and invited them to comment as to whether they had made a valid application for review. The Tribunal sent that invitation to the applicants via the email address nominated by them in their review application. The relevant part of the letter stated:
I am of the view that your applications are not valid applications as they were not lodged within the relevant time limit. The time limit is 28 days from the day on which you are taken to have been notified of the primary decision. The primary decisions were posted to you on 19 October 2016 and, on the basis that 28 October 2016 was the date on which you are taken to have been notified, the last day for lodging the applications for review was 25 November 2016. As the applications were not received until 28 November 2016, they appear to be out of time. However, this is a matter which must be determined by a Member.
5. By letter dated 12 January 2017, in response to the invitation to comment on this information the applicant provided the following statement.
This is in response to an invitation to comment on validity of applications for review, I pray that the Member would consider reasons given below and allow my application for Protection (subclass 866) visa to be processed. The application was received by the Administrative Appeals Tribunal (AAT) after the time limit.
The Primary decision was posted on 19 October 2016 and I was supposed to receive it on 28 October 2016. Consequently, the last day to lodge the application for review was 25 November 2016. I completed the application on 22 November 2016, I addressed it to AAT in Perth (ie. 111 St Georges Terrace Perth) and inadvertently dropped the application forms in the ‘drop box’ of the Department of Immigration and Border Protection (DIBP) at 836 Wellington Street, West Perth.
Unfortunately the review application was received by the AAT on the 28 November 2016. I humbly entreat the Member to consider that the delay might have been caused in transit because the application was given to DIBP in Perth on 22 November 2016 three days before the AAT time limit (Friday, 25 November 2016).
The review application is for a Protection visa and the lives of my family depend on it so invalidating the application can have a detrimental effect on us for the rest of our lives.”
The Tribunal had regard to the Applicant’s response of 12 January 2017, but noted that the reasons provided by the Applicant neither individually nor cumulatively would give the Tribunal the jurisdiction that it did not have, namely, jurisdiction to accept the Applicant’s review application after the 25 November 2016. The Tribunal noted that it had “no power to extend the prescribed period within which the applicants had to make their review application.”[8] No error attends the decision of the Tribunal.
[8] Decision Record at paragraph 7.
There is thus no prospect of success in respect of the substantive application.
The Court determines that both interlocutory applications should be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 4 February 2019
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