AHB16 v Minister for Immigration - [2018] FCCA 1646

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHB16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1646

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – application for extension of time – application filed three years out of time – extension of time allowed – whether the tribunal erred in considering whether the applicant had a well-founded fear of persecution – whether the tribunal failed to consider the risk of harm to the applicant arising from an imputation that he had converted from Islam to Christianity – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.417, 477

Applicant:

AHB16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 245 of 2016

Judgment of:

Judge Mercuri

Hearing date:

14 February 2018

Date of last submission:

14 February 2018

Delivered at:

Melbourne

Delivered on:

29 June 2018

REPRESENTATION

Counsel for the applicant:

Mr A Aleksov

Solicitors for the applicant:

WLW Migration Lawyers

Counsel for the respondents:

Mr W Mosley

Solicitors for the respondents:

Australian Government Solicitor

ORDERS

The application for an extension of time filed on 10 February 2016 be granted.
The applicant’s application for judicial review filed 10 February 2016 be dismissed.
The applicant pay the first respondent’s costs of the proceeding in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 245 of 2016

AHB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for an extension of time under section 477 of the Migration Act 1958 (Cth) (“the Act”) in which the applicant seeks to challenge the decision of the second respondent, the

Administrative Appeals Tribunal (“the tribunal”) made on

15 February 2013. In its decision, the tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) made on 22 October 2012 not to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 1646
Decision Date: 29 June 2018

CaseChat Overview and Summary

This matter came before Judge Mercuri in the Federal Circuit Court of Australia. The applicant sought an extension of time to file an application for review of a decision made by the Minister for Immigration. The Minister opposed the application for an extension of time.

The central legal issue before the Court was whether to grant the applicant an extension of time to file his application for review, considering the statutory precondition in section 477(2) of the Migration Act 1958 (Cth) that the Court must be satisfied that it is in the "interests of the administration of justice" to do so. This required the Court to consider what factors are relevant to this precondition and how they should be weighed, particularly in light of the applicant's explanation for the significant delay in filing his application.

Her Honour considered that the phrase "interests of the administration of justice" is broad enough to encompass factors such as the deprivation of a litigant's right to appeal if an extension is not granted, as well as case management considerations in busy jurisdictions. However, the Court noted that the legislated time limits for litigation are not to be ignored and that applications for extensions of time are not to be granted unless it is proper to do so. The Court found that the applicant's explanation for the delay was unsatisfactory, noting that pursuing ministerial intervention under section 417 of the Act is not a satisfactory explanation for delay, and that the applicant had failed to provide evidence regarding his alleged lack of funds.

The Court ultimately dismissed the application for an extension of time.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Her Honour went on to say however, that:In my opinion, the statutory precondition in s 477(2) of the “interests of the administration of justice” does not import any necessarily different set of factors to those which have been identified as relevant, in a permissive rather than a mandatory sense, under regimes such as that established by s11 of the AD(JR) Act. The presence of that phrase in the context of the Migration Act may afford a basis for other factors to be taken into account – such as the nature of the visa decision sought to be reviewed. It is a phrase broad enough to encompass factors such as the fact that without a favourable exercise of discretion, a litigant is deprived of an appeal as of right to this Court from any substantive decision made by the Federal Circuit Court. Other factors, such as case management considerations in busy jurisdictions such as the Federal Circuit Court where the interests of other litigants in the efficient and orderly progress of their own proceedings may be affected by the extension of time, may also be comprehended. What factors are taken into account, and how they are weighted, must be the subject of individual consideration in each case. (emphasis added)[14] [14] MZABP v Minister for Immigration and Border Protection [2015] at paragraph [58]. In WZAVL v Minister for Immigration and Border Protection & Anor [2016] FCA 334, his Honour Justice Farrell noted that:Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits for conduct of litigation are not to be ignored. Action taken by the applicant other than by way of making an application for review is relevant to consideration of the question whether an acceptable explanation for the delay has been furnished, albeit that the Court may exercise some leniency where the liberty of the individual is at stake…[15][15] WZAVL v Minister for Immigration and Border Protection & Anor [2016] FCA 334 at paragraph [32]. It was submitted on behalf of the Minister that the explanation for the delay in this case as set out in the applicant’s affidavit of [16] Noting that the advice should have been a time limit of 35 days.5 February 2016 was unsatisfactory. Moreover, counsel for the Minister also pointed to the fact that even once the applicant was made aware that the Minister had refused to intervene in September 2015, it took him a further two months to engage with his current lawyers and then a further three months to file his application. This is notwithstanding that he was informed about the 28 day time limit.[16] There was no explanation for this further delay in the applicant’s material. Counsel for the Minister directed the court to various cases in which the following principles were applied:a)an applicant’s choice to pursue Ministerial intervention under section 417 of the Act, is not a satisfactory explanation for the delay in seeking a review of the tribunal’s decision;[17] and b)to the extent that the applicant’s access to funds to pursue this application was in issue, he failed to put any evidence before the Court as to this mater other than a bald assertion to that effect in his affidavit. As noted in Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 262 (“Plaintiff M90/2009”) by her Honour Justice Crennan:As regards the plaintiff’s second reason, the plaintiff has asserted that he lacked the necessary funds to institute proceedings within time. No particulars of the plaintiff’s financial position are provided so there is no basis upon which to assess the assertion made. These considerations are not a sufficient explanation of the delay in bringing the application to this court. (emphasis added)[18][17] See for example: WZAVL v Minister for Immigration and Border Protection & Anor [2016] FCA 334 at [33]; Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 262, High Court, Crennan J Transcript of proceedings 16 October 2009 in M211/2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520 at [21]-[24]; see also Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; MAYLJ v Minister for Immigration and Citizenship [2012] FCA 335 at [8] and DAS v Minister for Immigration and Multicultural Affairs & Anor [2004] FCA 489 at [11]. [18] Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 262; see also DAS v Minister for Immigration and Multicultural Affairs & Anor [2004] FCA 489 at [12] and similarly Re Commonwealth; ex parte Marks (2000) 177 ALR 491 at [495].