AHE20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1053
Federal Circuit and Family Court of Australia
(DIVISION 2)
AHE20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1053
File number(s): ADG 28 of 2020 Judgment of: JUDGE BROWN Date of judgment: 19 December 2022 Catchwords: MIGRATION – Application for extension of time – application fifty two days out of time – explanation for the delay was Applicant’s sickness – no medical certificate or other explanation of infirmity provided – principles to be applied to extension applications – interests of the proper administration of justice – degree of assessment required of merits of substance case – reasons for later filing – application dismissed Legislation: Migration Act 1958 (Cth) s 5H, 5J, 36(2), 36(2A), 65, 474, 476, 477
Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021
Migration Regulations 1994 Sch 2
Cases cited: Craig v South Australia (1995) 184 CLR 163
DHX17 v Minister for Immigration, Citizenship, Migrant Services& Multicultural Affairs (2020) 278 FCR 475
EXU17 v Minister for Immigration & Border Protection [2018] FCA 1675
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407
MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203
Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
SXNXA v Minister for Immigration & Citizenship [2010] FCA 775
SZNJG v Minister for Immigration & Border Protection [2018] FCA 344
SZTES v Minister for Immigration & Border Protection [2015] FCA 719
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services& Multicultural Affairs [2022] HCA 28
WQRJ v Minister for Immigration, Citizenship, Migrant Services& Multicultural Affairs [2021] FCA 736
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 9 December 2022 Place: Adelaide Applicant: In person Counsel for the First Respondent: Mr Chan Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting notice filed save as to costs ORDERS
ADG 494 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AHE20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
19 dECEMBER 2022
THE COURT ORDERS THAT:
1.The application for an extension of time filed 20 January 2020 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of FIVE THOUSAND DOLLARS ($5,000.00).
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 BROWN:
INTRODUCTION
These reasons for judgment relate to an application for judicial review of a decision of the Administrative Appeals Tribunal,[1] made on 24 October 2019. The decision confirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection,[2] made on 10 March 2017, not to grant him a protection visa,[3] pursuant to the provisions of section 65 of the Migration Act 1958 (Cth).[4]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”.
[2] Hereinafter referred to as “the Ministerial Delegate”.
[3] Hereinafter referred to as “the visa” or “the Protection Visa”.
[4] Hereinafter referred to as “the Act”.
The applicant, whose identity has been anonymised, is male, a citizen of Malaysia, where he was born on 25 April 1982. He is a Tamil by ethnicity and a Christian. The applicant arrived in Australia on 25 May 2016 pursuant to an electronic travel visa.
The applicant applied for the visa on 17 August 2016. He completed a pro forma document, in support of his application, the contents of which can be summarised as follows:
·He left Malaysia fearing for his safety because of an altercation between him and his girlfriend’s brother;
·His girlfriend had fallen pregnant to him and in these circumstances he had agreed to marry her;
·However her family forced her to have an abortion and he himself was physically assaulted by his girlfriend’s brother and a group of his friends;
·He and his girlfriend had tried to run away from her brother but he (the brother) had been able to track him down and the brother had assaulted him again, notwithstanding his attempts to negotiate with him;
·In these circumstances, he believed that he would be killed, if he returned to Malaysia.
In response to a question regarding the practicality of him returning to a different part of Malaysia and seeking the protection of the Malaysian authorities, the applicant wrote as follows:
It is against our custom and tradition to have children before marriage. I do not want to embarrass both of our family; and that is the main reason I did not seek any help from the authorities of the country.
In my opinion, of course her brother will search me and seek for the never-ending revenge. Because, from his thinking, I humiliate his family by making his lovely sister pregnant.
I personally do not think they could give protection even though if I lodge a police report; how would they protect me for seven days for every 24 hours?
I do not think I am able to relocate within Malaysia and stay there freely and feeling safe and secure as before; unless if I undergo any cosmetic surgery so that no one could recognise me.[5]
[5] See Court Book at pages 33 & 34.
The Ministerial Delegate did not accept that Australia owed the applicant any obligation of protection pursuant to s 36(2)(a) of the Act on the basis that he was a refugee or that Australia owed him any complimentary protective obligation, pursuant to s 36(2)(aa) of the Act. In support of this finding, the Ministerial Delegate wrote as follows:
Having regard to the nature of the claimed risk of harm as submitted by the applicant, I am satisfied that the Malaysian authorities can provide protection to the applicant, sufficient to remove the risk of harm.
As such, I find that should the applicant be removed back to Malaysia he could reasonably expect to obtain protection from the Malaysian authorities such that there would not be a real risk of suffering significant harm.
There is nothing before the department to indicate that his girlfriend's family have any measures in place to monitor the applicant's movements. As such I find that should the applicant return to Malaysia, there is nothing currently before me to indicate that they would be aware of his return. Given the freedom of movement permitted amongst west Malaysian states, it could be considered reasonable that his girlfriend's family would not have knowledge of his whereabouts if he relocated to either Kuala Lumpur or elsewhere in the state or Malaysia more broadly.[6]
[6] See Court Book at page 53.
On 31 March 2017, the applicant applied to the AAT for a review of the Delegate’s decision. On 30 September 2019, the applicant was invited, by the AAT, to attend before it in order to give evidence and present any arguments relating to his claim for protection. The relevant hearing was scheduled for 23 October 2019.
The applicant attended at the relevant hearing and provided evidence. He was assisted by a Tamil interpreter in this regard. I have not been provided with any transcript of the proceedings before the Tribunal. As previously indicated, the Tribunal did not accept that the applicant met the legislatively prescribed criteria to be considered a refugee.
The Tribunal assessed the applicant’s evidence to lack credibility and his claims for protection to be vague, lacking in detail and inconsistent. As such, it found that the applicant had manufactured his claims. It reached this conclusion because it considered the claim for protection advanced on written application was significantly different to that presented orally before the Tribunal.
In particular, to the Tribunal, the applicant asserted that the basis of his claim for protection was that he was a Christian and his girlfriend was a Muslim. As a consequence of their relationship, he asserted that his family wanted the girlfriend to convert to Christianity; whereas her family wished him to convert to Islam. It was this controversy, which had resulted in him being assaulted.
The Tribunal referred to the applicant, for his comment, what it viewed as inconsistencies in the evidence provided by the applicant in his written Protection Visa application with what he had said during the hearing. In this context, the applicant claimed that his English was poor and the relevant form had been completed by a friend, who had not written out all the details of the applicant’s claim and he (the applicant), given his English language difficulties, was not in a position to check it.
The Tribunal, whilst noting the difficulties facing non-English speaking claimants for refugee status, did not accept this explanation that his friend, who had completed the application on his behalf, had not completed the form as directed and he (the applicant) had not been able to check it, because of his English deficiencies. It found as follows:
The Tribunal does not accept the applicant had no idea of what was written in his claim form when he submitted it to the Department. The Tribunal finds that the inconsistency in his evidence is significant and cannot be attributed to a misunderstanding or lack of knowledge about the protection visa application process. As detailed above, the applicant initially claimed the conflict with his ex-girlfriend's family was because they were not married, she was pregnant and her family forced her to have an abortion. The Tribunal finds that these are very specific claims. The applicant did not make this claim at the hearing and said the conflict was due to the fact it was an interfaith relationship and the ex-girlfriend's family wanted him to convert to Islam.
The Tribunal does not accept as credible the suggestion by the applicant that his friend who completed application form did not disclose the religious conflict as the cause of the dispute because he was a Muslim. The applicant has signed the application form. He said he obtained a translation of the delegate's decision and was aware of the reasons. He did not raise the issue about the discrepancy in his claims until the Tribunal questioned him about the inconsistencies in his evidence.[7]
[7] See Court Book at page 79 at [25]-[26].
The Tribunal noted other inconsistencies in the applicant’s evidence, which can be summarised as follows. In evidence to the Tribunal, the applicant indicated that he had complained to Malaysian Police, in July of 2015, after he had allegedly been assaulted. However, the police refused to deal with his claim.
This was in contrast to his written application, in which he indicated that he had not sought assistance from the authorities because he did not want to embarrass his family and his girlfriend’s family. The Tribunal regarded this as a significant inconsistency and one which could not be attributed to misunderstanding.
In addition, the Tribunal noted that the applicant claimed to have been assaulted in July 2015 but did not depart Malaysia until May of the following year. In these circumstances, the Tribunal doubted the veracity of the applicant’s claim that he feared to return to Malaysia because his girlfriend’s brother would continue to want to do his harm.
In addition, the Tribunal noted that the applicant had no medical reports in respect of his injuries or photographs of his girlfriend. It also noted that the applicant had been in Australia for a reasonably significant period of time and had not had any contact from his alleged assailants.
In all these circumstances, the Tribunal did not consider that the applicant has a well-founded fear of persecution. It found as follows:
For the reasons detailed above the Tribunal find the applicant’s evidence at the hearing is vague, inconsistent and lacking in detail. The Tribunal does not accept the applicant is a credible witness and does not accept the applicant's claims that he was in a relationship with a Muslim woman in Malaysia and that her family disapproved of the relationship because he was a Christian and would not convert to Islam. The Tribunal also does not accept the applicant's written claims that he fears his ex-girlfriend's family because they were not married, she got pregnant and her family forced her to have an abortion. The Tribunal therefore does not accept the applicant's claims that he was assaulted by his ex-girlfriend's brother and friends and refused police protection because of his relationship, his race or religion. The Tribunal also does not accept that the ex-girlfriend's brother approached his mother at his father's funeral in March 2019. The Tribunal does not accept that the police will charge him because he will be perceived to be a religious extremist. The Tribunal finds that the applicant manufactured these claims and he does not fear any harm in Malaysia.
Looking to the reasonably foreseeable future, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm if he returns to Malaysia because he is Tamil Christian, because he was in an interfaith relationship with a Muslim woman to whom he was not married or because his ex-girlfriend became pregnant and was forced to have an abortion. The Tribunal finds that the applicant's fears of persecution are not well founded.[8]
[8] See Court Book at page 81 at [39]-[40].
In addition, the Tribunal rejected the applicant’s claim for complimentary protection on the basis it did not satisfy that the applicant would face a real risk of suffering significant harm, if returned to Australia. It doubted the applicant would be targeted by his girlfriend’s brother or friends if he returned to that country.
Legal Considerations Relevant to the Grant of Protection Visas
The AAT summarised the legislative criteria for the grant of a protection visa pursuant to the Act. In general terms, the following matters are relevant to any decision in respect of a migration decision concerning an application for protection.
Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
In respect of an application for a protection visa, the criteria required to be satisfied are set out in the Act and in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy one of the primary criteria contained in either section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and is therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
[I]n the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·be subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
The expression serious harm is defined in section 5J(5) as follows:
·a threat to the person's life or liberty;
·significant physical harassment of the person;
·significant physical ill-treatment of the person;
·significant economic hardship that threatens the person's capacity to subsist;
·denial of access to basic services, where the denial threatens the person's capacity to subsist;
·denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
These sections reflect the definition appearing in the Refugees Convention,[9] to which Australia is a signatory and which provides that a refugee is a person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
[9] Hereinafter referred to as “the Convention”.
The High Court has established that this definition has both subjective and objective elements. As a consequence, the question to be asked by the relevant decision-maker, regarding an application for protection being firstly does the applicant concerned subjectively fear persecution and secondly is that fear objectively well-founded.
In assessing the objective aspects, the decision-maker concerned must determine what is likely to happen to the applicant concerned, if he or she is returned to the country, where persecution is posited. Necessarily such considerations are predictive in nature. They are often encapsulated under the rubric of the real chance test.[10]
[10] See S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 498–499 [72]–[73].
Accordingly, in determining whether there is such a real chance of a protection visa applicant suffering serious harm, in his or her country of origin, a decision maker is entitled to refer to information germane to the country of origin, of the applicant concerned, regarding the situation likely to confront either the actual applicant or others who bear his or her attributes, if returned to that country.
Essentially, the question to be addressed is what is the objective likelihood that the claimant in question will suffer persecution, if returned to his or her country of origin? Such an inquiry is likely to involve a survey of information of the situation likely to confront a person, with the attributes of the claimant concerned, in the applicable country. Such objective information is invariably referred to as country information.
Pursuant to section 36(2)(aa) of the Act, a person is entitled to a protection visa, if there are substantial grounds for believing that, if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering significant harm if returned to a particular country.
Section 36(2A) of the Act defines significant harm. It includes the relevant applicant for protection suffering all or any of the following circumstances:
·being arbitrarily deprived of his or her life;
·being subject to the death penalty;
·being subject to torture;
·being subjected to cruel or inhumane treatment or punishment; or
·being subject to degrading treatment or punishment.
The Current Proceedings
As indicated above, the relevant decision of the Tribunal was made on 24 October 2019. The applicant commenced the current proceedings, seeking an order quashing the decision and the remission back of the matter for re-hearing before the AAT, on 20 January 2020, some 89 days later.
The applicant has prepared his own grounds of review, which are as follows:
(1)The applicant was denied procedural fairness by the Reviewer’s failure to address part of the applicant’s claim and/or the failure to take into account a relevant consideration;
(2)More details will be provided later.
As will be explained in more detail, in a later portion of these reasons, a time limit of 35 days applies in respect of applications for judicial review of migration decisions made under the Act. As a consequence, the relevant application form provides for an out of time applicant to apply for an extension of time and provide reasons which support the granting of such an extension.
The applicant has sought such an extension. The ground he has provided in support of this application is as follows:
I was sick and was unable to lodge the application in time.
The application is supported by an affidavit deposed by the applicant, which was filed on 20 January 2020. It reiterates the claim that the applicant was sick and could not file the application on time. He provides no further evidence in support of this assertion.
In addition, he has not provided any details or particulars of how he was denied procedural fairness by the Tribunal or what were the specific aspects of his claim for protection which were not considered by it or what aspect of the applicable legislative regime was overlooked or misapplied.
On 3 August 2020, the Registrar of the Court granted the applicant leave to amend his application by 5 June 2020. He was further directed to file an outline of his submissions, in which he would have been able to specify the aspects of the relevant decision which were vitiated by jurisdictional error, 28 days prior to the date specified for final hearing.
The matter was fixed for hearing by the Registrar on 17 August 2022 in respect only of the extension of time aspect of the case. The applicant was present by telephone and the case listed for hearing on 9 December 2022. The applicant appeared on the 9 December 2022. A Tamil interpreter was also present to assist him, albeit the interpreter was available by telephone. The applicant did not avail himself of the opportunity to amend his application or provide written submissions.
In these circumstances, two preliminary issues arise, which can be summarised as follows:
·What should be the status of an un-particularised, generic application for judicial review, which does not provide any grounds for the Court’s intervention;
·What should be the consequences of the late filing of the application?
I will turn to the legal considerations which relate to each of these aspects of the case.
Legal principles relating to judicial review of migration decisions
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[11]
[11] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
Pursuant to section 476 of the Act, the Federal Circuit Court has the same original jurisdiction to review what are characterised as migration decisions as that conferred on the High Court. The relevant decision of the AAT is such a migration decision. This provision of the Constitution confers original jurisdiction on the High Court in proceedings in which a prerogative writ is sought against an officer of the Commonwealth.
Accordingly, the court has the authority to grant the relief sought by the applicant by way of writs of certiorari and mandamus to quash the relevant Tribunal decision and require the re-hearing of the review but only in the event an error of jurisdiction is established.
In this context, it is important to emphasise that, in undertaking judicial review, this court is unable to examine the merits of the relevant decision under review or substitute its own findings of fact for those of the original decision-maker. As such, the court must be vigilant to avoid inadvertently transforming a process of judicial review into a re-hearing on the merits.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[12]
[12] See Craig v South Australia (1995) 184 CLR 163.
The classic description of an error, which goes to the jurisdiction of an administrative body, was described in the following terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[13]
What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.[14]
[13] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.
[14] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82].
In Minister for Immigration & Citizenship v Li (“Li”)[15] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[15] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75]–[76].
Following on from Li, in Minister for Immigration & Border Protection v Singh,[16] the Full Court identified two distinct areas in which a tribunal may fail to discharge the jurisdiction conferred upon it by acting in a manner which is legally unreasonable.
[16] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437.
Firstly, such a tribunal discharges its reasoning functions in a way which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility. This refers to the process of reasoning, utilised by the relevant decision-maker concerned, in reaching a decision. It is focussed on process, including the application of any relevant statutory criteria to such a decision.
Secondly, the outcome of the proceedings is coloured by some species of caprice or arbitrariness, which renders the decision legally unreasonable, although the applicable jurisdictional questions have been addressed by the decision-maker in question. This second area is outcome focussed.[17]
[17] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
Essentially, in conducting its supervisory jurisdiction over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme” not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[18] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[18] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.
In order to be successful in their application for review, it will be necessary for the applicant to demonstrate an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own discretion for that of the Tribunal or embark upon its own process of merits reviewing, which involves it making findings of fact in substitution for those of the Tribunal.
In Minister for Immigration & Ethnic Affairs vWu Shan Liang[19] the High Court warned that a court, such as this one, called upon to review a decision regarding refugee status:
Must beware of turning a review of the decisions of the decision-maker upon proper principles into a reconsideration of the merits of the decision.[20]
[19] Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259.
[20] Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259 at 272.
As such, this court is required to give the reasons of the Tribunal a beneficial construction, which does not involve a degree of over-zealous scrutiny, which searches out error.
Legal principles relating to time Limits
The power conferred by section 476 is subject to a time limit. In particular, section 477(1) of the Act prescribes a period of thirty-five days in which to bring proceedings in respect of the review of migration decisions. On my calculations, the current application is some 54 days out of time.
Pursuant to section 477(2) of the Act, the court is endowed with a discretion to extend the 35 day period, if it considers that it is necessary in the interests of the administration of justice to do so. Other conditions apply to the exercise of this discretion. Griffiths J in EXU17 v Minister for Immigration & Border Protection (“EXU17”)[21] delineated these conditions as follows:
[There are] two conditions to the exercise of the FCCA’s discretionary power to extend time under section 477(2). The first is the requirement that there be a written application seeking an extension of time which specifies why the applicant considers that it is necessary in the interests of the administration of justice to make the order. The second condition is that the FCCA must be satisfied that it is necessary and in the interests of the administration of justice to make the order.
[21] See EXU17 v Minister for Immigration & Border Protection [2018] FCA 1675.
The applicant has made such a written application. However, he has not specifically addressed any issue, pertaining to the interests of the administration of justice, which support the extension of time. By necessary implication, it would be in his personal interests that the application be considered. This is not strictly congruent with the interests of the administration of justice.
However, I accept, in general terms, that it is not in the interests of the administration of justice that a bona fide claim for judicial review should be rejected, in circumstances where there is a reasonable explanation for the delay. In this context, it is necessary to turn to other cases which deal with the extent to which the court should examine the particular claim for relief, particularly in the context of the overall merits of the case sought to be advanced.
Clearly, if leave is not granted to the applicant, the court cannot deal with his application for judicial review. This has the potential to have the appearance of being unfair to the applicant, who may perceive that the full merits of his judicial review application has not been considered and this is axiomatically not in the interest of the administration of justice.
Wigney J expressed the potential difficulty in SZTES v Minister for Immigration & Border Protection[22] in the following terms:
The extension application was set down for hearing at the same time as the substantive application. That is in itself not necessarily problematic. Courts regularly set down applications for leave to appeal or extensions of time at the same time as the appeal or substantive application. When this is done, however, it is important for the court and the parties to proceed in a way that makes it clear whether the leave or the extension application remains a live issue. In particular, care should usually be taken to ensure that issues that arise in relation to the leave or extension application are dealt with separately and distinctly from the issues that arise on the substantive application.
[22] SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [52].
His Honour went on to indicate the great care, which the court needed to exercise in situations in which an extension of time application has been listed at the same time as an application for review, which as indicated above is not the case in the current matter. The necessity for such care arises from the danger of any unfortunate perception being created that an applicant’s substantive application had not received a proper level of hearing on its merit. As such, ordinarily, he considered only in the clearly hopeless cases would it be appropriate to refuse an extension without fully dealing with the merits of the review case involved.[23]
[23] SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [112].
Accordingly, I must take care not to conflate issues relating to the extension of time application with the substantive application. However, as will become apparent, I cannot ignore the issues raised in the judicial review application itself particularly the merits of the review. It would not be appropriate to extend time in a case that can only be characterised as being manifestly hopeless.
In this context, I appreciate that the substantive application has not been listed for hearing at the same time as the extension of time application. However, as I will detail, in order to deal with the extension aspect, some consideration must take place of the substantive application to avoid the risk of a worthy application for judicial review not being considered on a limitation basis alone.
In this context, in SZNJG v Minister for Immigration & Border Protection[24] Markovic J summarised three principles which are relevant to the exercise of the discretion to extend time in the following manner:
·Whether the applicant had provided a reasonable explanation for the delay;
·Whether the respondent would suffer prejudice in the light of the delay; and
·The merits of the substantial application itself.
[24] SZNJG v Minister for Immigration & Border Protection [2018] FCA 344 at [24].
In EXU17 Griffiths J warned against applying such criteria unduly prescriptively, being of the view that the discretion was one which was fundamentally to be informed in a manner which ensured that the interests of justice were served. In this context, he cited the following comments of Mortimer J in MZZIV v Minister for Immigration & Border Protection:[25]
The discretion to extend time is reposed in the Court to ensure that the interests of the administration of justice are served, and parties whose substantive appeals should be heard and determined in accordance with law are able to secure that outcome. Identifying which parties fall into that category requires analysis of the factual circumstances in each case. Sometimes, matters such as lack of legal representation, little or no proficiency in English, and little or no understanding of the Australian legal system may combine to suggest a delay is explicable. Other factors such as the length of the delay, the steps taken by an applicant during the running of the time period, and the time at which the applicant received a copy of the Court’s orders and reasons may be significant. The party’s personal circumstances may need to be considered. The importance of the subject matter of the proceeding to the party requesting an extension of time may also be relevant. The more there is at stake, the more confident the Court may need to be before it refuses an extension of time, especially if the delay is not significant. The manner in which a discretion such as this should be exercised cannot be answered by general statements about certain attributes or the circumstances of a party being insufficient.
Even in circumstances where the Court is persuaded on the basis of the kinds of factors referred to that an extension of time may be appropriate, the prospects of success of any appeal may be determinative of the manner in which the Court’s discretion should be exercised. That is because it is not in the interests of the administration of justice to utilise the resources of the Court and of other parties where there is no realistic prospect the appeal will succeed if an extension is granted. Such a process also exposes an applicant to the risk of significantly greater legal costs if the appeal is unsuccessful and the Court makes the usual orders as to costs.
[25] MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 [5] – [6].
The Minister, in the absence of any supporting medical material, which indicates the nature of the applicant’s illness and incapacity and its likely physiological impact upon his capacity to lodge the relevant application, within the 35 day time frame prescribed, does not accept the applicant’s explanation for the delay is a reasonable one. Respectfully, I agree.
At the hearing before me, the applicant stated that the delay was occasioned by the death of his father. Again, no supporting documentary evidence was provided and again, I do not view the explanation as acceptable, given the late stage at which it was offered.
Counsel for the Minister concedes that there is no specific prejudice to the Minister, arising in the current matter in terms of an extension being granted other than the Minister has an interest in the prompt disposition of administrative matters generally and specifically a legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas.[26]
[26] See WQRJ v Minister for Immigration, Citizenship, Migrant Services& Multicultural Affairs [2021] FCA 736 at [41] – [42].
I concede that the delay in filing cannot be considered an egregiously lengthy one but nor is one which can be considered inconsequential. It is months and weeks rather than days. In my view, the impact of the delay must be considered in the light of the explanation for it, which I have characterised as unsatisfactory.
In this context, it is necessary to consider the extent to which the court should examine the merits of the case concerned at the extension of time stage. Essentially, to what degree should the court engage with the case concerned in circumstances in which it is not actually listed for final hearing?
On one hand, it is not in interests of the administration of justice that a case which is axiomatically hopeless, should be allowed to proceed if otherwise out of time. On the other hand, a case which presents, at least, the impression of having some prospects of being successful, should not be shut out, as such an outcome may not accord with general perceptions regarding how justice should be properly administered.
The risk being that if too nuanced an evaluation occurs, at the extension of time stage, the court may misconceive its jurisdiction and embark on a full judicial review, when the task before it is to only to consider the issue of an extension.
In this context, the court should be alive to the difficulties, which often arise in protection cases, for applicant who do not speak English with proficiency or do not have access to legal advice. It sometimes being the case that an unrepresented applicant may, at a later stage, be able to shape a meritorious, or at least arguable, ground of review from something, which at first blush appears hopeless.
As previously indicated, it has been said by the Federal Court that there is a risk that the court may conflate its functions under section 477 in respect of granting an extension of time; with its judicial review functions under section 476, if in assessing the merits of a particular case, it went beyond anything other than an impressionistic evaluation of the [applicant’s] proposed grounds of review as this could amount to a jurisdictional error on the basis that it would represent an action in excess of the jurisdiction conferred by section 476.[27]
[27] See DHX17 v Minister for Immigration, Citizenship, Migrant Services& Multicultural Affairs (2020) 278 FCR 475.
This issue was considered and resolved by the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services& Multicultural Affairs,[28] where the majority held as follows:
It follows that the Full Court in DHX17 was wrong to say that "the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review". As the merits of a proposed application are a permissible consideration, it is within the Federal Court's jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant's case is likely to commit jurisdictional error, was mistaken.
In this case, there is no basis to conclude that the primary judge's consideration of the plaintiff's proposed ground of review involved error. His Honour considered the substance of the ground of review and concluded that it lacked merit. His Honour's reasons say nothing to suggest that this consideration involved the identification of any issue that might have had merit, and the plaintiff did not point to any such issue. Nor, …do his Honour's reasons suggest that the primary judge would only have concluded that it would be necessary in the interests of the administration of justice to extend time if his Honour was persuaded that the proposed ground of review would succeed. It was permissible, and in this case appropriate, for the primary judge to assess whether the proposed ground of appeal had any merit in order to decide the extension of time application. Having failed to be satisfied that the proposed ground had any merit, it was open to his Honour to fail to be satisfied that it was necessary in the interests of the administration of justice to grant an extension of time.
[28] Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services& Multicultural Affairs [2022] HCA 28 per Kiefel CJ, Gageler,Keane & Gleeson JJ at [19] – [20].
Lack of particulars
I acknowledge the difficulties confronting the applicant by way of his lack of English and proper legal advice. However, it is not the responsibility of either the court or the Minister to search out for some ground of review on behalf of the applicant. Nor, as pointed out above, should the court closely scrutinise the reasons of an administrative decision-maker in an attempt to search for error.
In this case, in my view, the AAT identified the legal principles applicable, namely whether or not the applicant would face a real chance, attributable to a Convention reason, of facing persecution if returned to Malaysia. It concluded that he would not. In this context, the applicant does not identify any jurisdictional error which vitiates the exercise of jurisdiction.
In particular, he does not specify what is the irrelevant consideration taken into account or what aspect of his case was not considered. Rather, he asserts, in effect, that he is dissatisfied with the decision and wishes another decision to be made in its stead. Similarly, he has not identified any basis on which he asserts that the proceedings in question were procedurally unfair to him.
Rather, the grounds for review are generic and amorphous in nature which renders it difficult, if not impossible for the court discern what are the errors attributable to the Tribunal, which attracts the jurisdiction of this court. This is of itself provides grounds for the dismissal of the application concerned.[29]
[29] See SXNXA v Minister for Immigration & Citizenship [2010] FCA 775 at [20] – [21] per Reeves J.
Conclusions
I can find no apparent jurisdictional error in the reasons of the AAT. The applicant was fairly invited to appear before the Tribunal to present whatever evidence he wished to do. He was provided with an interpreter. Thus, in my view, there is no discernible aspect of procedural unfairness in respect of the hearing itself or how the applicant came to attend it.
The central issue for the Tribunal was his credibility in the light of him having provided inconsistent grounds for being entitled to Australia’s protection, at the initial application stage and in the hearing before it. As previously indicated, I have not been provided with a transcript of the proceedings. However, the reasons themselves indicate that the Tribunal raised with the applicant the various inconsistencies in his evidence, which it had identified and invited his comments in respect of them.[30]
[30] See Court Book at page 79 [23].
Essentially, the Tribunal did not believe central aspects of the applicant’s claim for protection after it had raised these inconsistencies with him. As has been indicated in a number of cases, assessment of credibility is a matter for the Tribunal par excellence.[31]It is an essential aspect of its fact finding jurisdiction. It would impermissibly transform these proceedings into a merits re-hearing if this Court substitutes its own finding on credit for those of the Tribunal.
[31] See Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407.
The reasons provided are, in my view, are their face, comprehensive, logical and directed towards resolving the jurisdictional issue conferred upon the Tribunal for its resolution. The applicant has not identified any specific or identifiable error in this regard. As such, his application is flawed and liable on its face to dismissal.
In this context, the application is out of time. In this context, the court is required to assess the reason(s) provided as to why the application is out of time. In my view, no cogent reason, supported by evidence, other than the applicant’s assertion of the fact, has been presented by him to support an assessment that it would be in interests of the administration of justice for the extension to be granted. This is the central issue for the court at this stage.
I am entitled to undertake the assessment of the case, which I deem appropriate, to assess the merits of his case. In my view, for the reasons outlined above, his case is inherently weak and devoid of any apparent merit. For these reasons, it would not be in the interests of the administration of justice for an extension to be granted in respect of a clearly hopeless application. Accordingly, the application is dismissed.
For these reasons, the application must be dismissed. The first respondent seeks costs in an amount of five thousand dollars ($5,000.00), which is less than the amount prescribed by the relevant court scale set by the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021. I will make an order to this effect.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 19 December 2022
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