AIU21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 774
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AIU21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 774
File number(s): SYG 195 of 2021 Judgment of: JUDGE MANSINI Date of judgment: 24 August 2023 Catchwords: MIGRATION – Application for extension of time for review of decision to refuse a humanitarian visa – where application was lodged 300 days after expiry of the statutory timeframe – significant period of delay not adequately explained – no particular prejudice to the Applicant were the extension of time application refused – where substantive application is futile and lacks merit – extension of time ought not be granted – application refused. Legislation: Migration Act 1958 (Cth) ss.65, 66, 430(2), 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr1.07, 7.01
Migration Regulations 1994 (Cth) cl.200.222(1), 201.222(1), 202.222(2), 203.222(1), 204.224(1)
Cases cited: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193
BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483
Craig v South Australia (1995) 184 CLR 163
Lynch v Cash Converters Personal Finance Pty Ltd [2016] FCA 1536
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] 258 CLR 173
SZMNF & Ors v Minister for Immigration [2008] FMCA 983
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
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
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
XA v Minister for Home Affairs [2019] FCAFC 166
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of hearing: 17 August 2023 Place: Parramatta Solicitor for the Applicant: Mr S Jeans Counsel for the Respondent: Ms K Hooper Solicitor for the Respondent: Minter Ellison Lawyers ORDERS
SYG 195 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIU21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
24 August 2023
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
2.The Applicant pay the costs of the Respondent fixed in the sum of $8,371.00.
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 MANSINI
INTRODUCTION
This decision concerns an application for an extension of the time for filing an application for judicial review of a decision by a delegate of the Respondent to refuse the Applicant an offshore humanitarian visa.
The application was lodged 300 days after the expiry of the statutory timeframe.
Not being satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is dismissed. The reasons for this decision follow.
FACTUAL CONTEXT
On 21 February 2016, the Applicant’s legal representative attended the Australian Embassy in Amman, Jordan (Embassy) and on his behalf lodged an application for an Offshore Humanitarian (Class XB) visa which was signed on 18 February 2016. The application was sponsored by the Applicant’s brother who resided (and resides) in Australia. The application was supported by a statutory declaration of the Applicant dated 18 February 2016, a written submission, a United Nations High Commissioner for Refugees Asylum Seeker Certificate, identity and other documents.
The Applicant’s legal representative filed an affidavit in these proceedings by which he deposed to the following context:
(a)The Applicant’s application was one of a number of cases personally lodged at the Embassy between November 2015 and June 2016.
(b)The Applicant’s legal representative communicated by email with senior migration officers of the Embassy and the Department of Home Affairs (as it then was) (Department) to follow the progress of the Applicant’s and other cases lodged at or around the same time.
(c)On 26 September 2017, an officer of the Embassy provided a list of cases which recorded their status – a copy was attached and marked the Applicant’s case as “We do not have a record of this application” and other cases as refused, granted, interviewed and assessed, to be scheduled for an interview or being assessed by another overseas post.
(d)After further communications with the Embassy, they agreed to accept a copy of the Applicant’s original application and related documents as provided again on 10 March 2018 by the Applicant’s legal representative.
(e)There were further communications between the Applicant’s legal representative and the Embassy:
(i)on 12 March 2018, an email from the Applicant’s legal representative to the Australian Ambassador to the Hashemite Kingdom of Jordan which attached a list of cases he had lodged;
(ii)on 22 March 2018, an email from the Australian Ambassador to the Hashemite Kingdom of Jordan which informed the Applicant’s legal representative that their chief migration officer (CMO) had undertaken to look into the progress of the cases on the list and would respond directly to the representative;
(iii)on 24 July 2018, as part of an exchange about the “lost” applications, an email from the Applicant’s representative inquiring as to whether the Embassy had located all of the cases previously noted as missing and inquiring as to when the other cases, waiting for an interview, could be further processed; and
(iv)on 29 July 2018, also as part of that exchange about the “lost” applications, an email from an officer of the Embassy which provided a status update by notation on a list of cases lodged by the Applicant’s legal representative. The list of cases did not include the Applicant’s case. The email also included the following statement:
Please note that we don’t have any time frame at this stage for the cases to be interviewed. Once we scheduled them for interviews, you will be advised accordingly.
(f)In the experience of the Applicant’s representative: only those cases identified for visa grant are interviewed; the Department does not have the ability to interview every case; and over 99 per cent of cases that are interviewed are granted a Class XB visa.
On 3 October 2018, a representative of the Department refused to grant the Applicant a visa and provided a decision record (first refusal decision).
On 4 October 2018, the Applicant’s legal representative sent an email to the CMO in which he submitted that genuine consideration was not given to the application because the decision-maker had “used the template and could not be bothered to change “applicants” to “applicant” in most references” and requested that the decision “be recalled and allocated to you for a new decision” citing Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (Bhardwaj). The Applicant’s legal representative copied his request to the Ambassador, the Minister’s Senior Adviser and the President of the Sabean Mandean Association in Australia.
On 7 October 2018, the CMO sent an email to the Applicant’s legal representative in which he relevantly stated:
Your understanding about the flexibility around 200s and 202s is the same as mine. These days we are aligning the process for accepting referrals across the region meaning all 681s now have to strictly go through Sydney. Because of our backlog we're also no longer accepting self-referred applications unless there are truly extenuating circumstances. That said, Alanna has already agreed to look at the Sabean Mandaean cases you've raised and my view is that we can continue to treat those flexibly/practically-the exception being of course any issues relating identity, character, security etc.
(sic.)
On 11 October 2018, a representative of the Embassy and the Department notified the Applicant’s legal representative of a decision to “vacate” the first refusal decision of 3 October 2018. By that email, the writer also stated:
We will resume the process on this file but at this stage we are unable to commit to any time frame to finalise this file, however, If we require any additional information, we will be in contact.
(sic.)
On 12 October 2018, the CMO sent an email to the Applicant’s legal representative to confirm that the first refusal decision had been vacated and further stated:
(The Applicant’s) and other cases you have raised will be kept on hand and we’ll progress them under our existing processing priorities – i.e. date order unless there are urgent or compelling or compassionate circumstances. HQ reiterated to us that we can’t accept any more self-referred cases and that 681s will now need to be lodged through Sydney.
On 24 January 2019, in response to an email from the Applicant’s legal representative following up on his “XB cases” in which he stated that he was “receiving information that not everyone from early 2016 has been interviewed” and would be meeting the (then) Minister and raise it with him, the CMO sent an email to the Applicant’s representative in which he stated:
Since March 2018, eight of your cases have been interviewed and granted. We have one case assessed in, which is waiting on clearances. There are two cases with close personal family links onshore (as per government priority for resettlement), which will likely be interviewed in the next two to three months. Another four cases will likely have a decision this program year. I also referred the two Ankara cases that I was aware of (there may be more but I was going off one of your lists) to my colleague there but nothing received yet. Overall I think there is reasonable progress on these cases, notwithstanding our stakeholders always, understandably, would like the process to go faster.
In relation to the issue you raise regarding some 2016 cases still awaiting interview this is simply reflective of us processing a) in accordance with government priorities i.e. vulnerable women and children; persons with close family links onshore etc and then b) in date order within priority streams. As with other legacy self-referred cases, these 2016 cases would ordinarily have been considered for refusal on capacity grounds but we agreed to retain these in our pipeline.
On 10 March 2020, a representative of the Department refused to grant the Applicant a visa (second refusal decision). It is not disputed that the Applicant was not notified.
On 11 March 2020, the Department emailed notification of the decision and a decision record to the Applicant’s brother and sponsor. Within minutes, the Applicant’s brother and sponsor confirmed receipt.
On 11 September 2020, the Applicant’s brother and sponsor forwarded the notification of the second refusal decision to the Applicant’s legal representative, by email which included a statement of apology for having forgotten to notify the representative.
On 13 September 2020, the Applicant’s legal representative sent an email attaching a letter addressed to the CMO in which he requested that the 10 March 2020 decision be vacated or revisited because it was affected by jurisdictional error and is not a decision under the Migration Act 1958 (Cth) (Act), again citing Bhardwaj and suggested the error was similar to that in SZMNF & Ors v Minister for Immigration [2008] FMCA 983. In that letter, the Applicant’s legal representative included extracts of emails with the Embassy and Department representatives and asserted these emails indicated that the Applicant’s application was in the “pipeline” for interview and was never informed otherwise. Further, that the correct procedures in the Act had not been followed and this was a failure to exercise jurisdiction. The letter concluded with a request that the second refusal decision be vacated or revisited and the application be allocated to another delegate for further processing.
On 15 September 2020, the CMO responded by email to the Applicant’s representative in which he said that he “will again look into this” and also reminded the Applicant’s legal representative that there was an internal process to be followed regarding claims of jurisdictional error.
On 16 November 2020, the Second Secretary (Immigration and Border Protection) of the Department and Embassy sent an email to the Applicant’s legal representative notifying that the Department did not intend to take further action and of their view it was clear that the Applicant had now been notified of the second refusal decision and would not be re-notified of such.
The second refusal decision
Relevantly, for the purposes of the present matter, the Minister or their delegate was required to assess the Applicant against the criteria at clauses 200.222(1), 201.222(1), 202.222(2), 203.222(1) and 204.224(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
According to the decision record, the Minister’s delegate was not satisfied that the primary criteria in any of the aforementioned clauses were satisfied and, therefore, the remaining criteria were not assessed and the application for a Class XB visa was refused.
The decision record stated:
Assessment against primary criteria
Class XB contains five visa subclasses (subclasses 200, 201,202, 203 and 204). To be granted a visa in this class, an applicant must satisfy all of the primary criteria in one of the subclasses. I am required to assess the applicant against all of the subclasses in Class XB.
As I have assessed the applicant as satisfying time of application criteria in clauses 200.211(1), 201.211(1), 202.211(1), 203.211(1) and 204.211(1), I must assess the application against the requirement in clauses 200.222(1)(b), 201.222(1), 202.222(2), 203.222(1)(b) and 204.224(1)(b) that there be compelling reasons for giving special consideration to granting the applicant a visa, having regard to the following factors:
a) the degree of persecution to which the applicant is subject in their home country; and
b) the extent of the applicant’s connection with Australia; and
c) whether or not there is any suitable country other than Australia that can provide for the applicant’s settlement and protection from persecution; and
d) the capacity of the Australian community to provide for the settlement of persons such as the applicant in Australia.
Degree of persecution or discrimination
The applicant has demonstrated that they are subject to some degree of persecution or discrimination in their home country.
Connection with Australia
The applicant has demonstrated a connection to Australia through his brother as indicated in the information provided to the department.
Other suitable country
There is no evidence that there is another country available for the applicant's settlement and protection from persecution or discrimination.
Capacity of Australian community
Australia has limited capacity for humanitarian resettlement and cannot resettle all people who apply for a Refugee and Humanitarian visa.
I accept that the applicant is subject to some degree of persecution or discrimination in their home country and has some connection with Australia. Although there is no evidence that there is another country available for the applicant’s settlement and protection, Australia does not have the capacity to provide for permanent settlement of all applicants at this time.
Weighing these factors together, I am not satisfied that there are compelling reasons for giving special consideration to granting the applicant a Class XB visa. I find that the applicant does not satisfy subclauses 200.222(1), 201.222(1), 202.222(2), 203.222(1) and 204.224(1).
PROCEEDINGS BEFORE THIS COURT
Procedural context
On 8 February 2021, the Applicant’s legal representative lodged an application for judicial review of the second refusal decision which was accepted for filing in accordance with the Court’s procedures on 9 February 2021. The original application did not seek an extension of the time for filing.
Various procedural orders were made, most recently by consent on 24 July 2023. By those orders the Applicant was required to file and serve an amended application seeking an extension of time pursuant to s.477(2) of the Act and any affidavit evidence in support, on or before 25 July 2023.
On 24 July 2023, an application for an extension of the time for filing the judicial review application was lodged and accepted for filing on 25 July 2023. Also on 25 July 2023, an affidavit of the Applicant’s legal representative and outline of submissions were filed.
On 4 August 2023, the Applicant’s legal representative proposed to amend the substantive grounds of the application for judicial review and served a copy of the proposal on the Respondent. A copy of the proposal was provided to the Court on the eve of the hearing but was not filed.
On 17 August 2023, the matter proceeded to hearing of the application for an extension of time before the Court as presently constituted. The Applicant was represented by his legal representative who identified himself as a solicitor and a barrister acting in his capacity as solicitor and the Respondent was represented by counsel.
At the hearing, the proposed amendment of the substantive application was opposed by the Respondent on grounds that the proposed amendments were late, not in compliance with the Court’s programming orders, those issues were unexplained and, in any event, the proposed amendments were unmeritorious. For the Applicant in response: further amendments to the proposed amended application were made and otherwise pressed on the basis that the proposed amendments added clarity and specificity to the original substantive grounds of judicial review.
This Court has a broad power to allow an amendment to be made to a document as the Court thinks fit, even if it would be to include a cause of action arising after the proceeding was started: r.7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules). The Rules may otherwise be dispensed with, at any time, in the interests of justice: r.107.
In considering whether to grant leave for such amendment, the established principles include that the Court will, as a starting point, allow all amendments necessary to resolve the real questions in controversy and otherwise ordinarily allow an amendment provided it can be done without the kind of harm to the other party that cannot be compensated by an award of costs or an adjournment. The Court is unlikely to do so where the amendments are so obviously futile that it would be struck out if it appeared in the original pleading. Other relevant matters may include the importance of the amendment to the party applying for it and the prejudice caused by it: Lynch v Cash Converters Personal Finance Pty Ltd [2016] FCA 1536 at [55] per Gleeson CJ.
The Applicant’s proposed changes were notified in sufficient time that the Respondent was able to address the proposals in their filed written submissions and, as further amended orally, in oral submissions at the hearing. Notwithstanding the apparent dearth of evidence in support of the substance of those grounds as amended, in all of the circumstances I consider it an appropriate case to afford the Applicant maximum opportunity to present his case as clearly and persuasively as possible.
Accordingly, I will allow the amendment of the substantive application for judicial review in the terms articulated by the Applicant’s representative at the hearing.
STATUTORY FRAMEWORK
An administrative decision-maker is required to refuse to issue a visa absent the requisite satisfaction that the criteria applicable to the visa application are satisfied: s.65.
Relevantly, when the Minister grants or refuses to grant a visa, there are certain statutory notification requirements: s.66. Relevant to the present matter, the decision-maker was obliged to specify the provision(s) of the Regulations which prevented the grant of the visa: s.66(2)(b).
However the decision under review is one which was not reviewable under Parts 5 or 7 of the Act and therefore is one in which the delegate was not required to provide written reasons: s.66(3).
In XA v Minister for Home Affairs [2019] FCAFC 166, Thawley J (with whom Lee J generally agreed) usefully summarised the principles to be applied in judicial review of such decisions, having regard to what the High Court of Australia had indicated in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] 258 CLR 173, as follows:
[177] In light of the fact that there was no obligation to provide reasons, the following general principles apply to the interpretation of the decision record which the delegate prepared:
(1) The court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision: Plaintiff M64 at [25]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–272, 278, 282.
(2) An error of law might be demonstrated by inference from what the delegate said by way of explanation given for the decision made; however, whether it is appropriate to draw the inference must be assessed having regard to the fact that there was no statutory requirement to provide reasons: Plaintiff M64 at [25].
(3) By reason of the fact that there was no obligation to provide reasons, “it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate”: Plaintiff M64 at [25] (emphasis in original); the fact that the decision does not mention a matter does not, of itself, indicate that the matter was ignored: Plaintiff M64 at [25].
(4) Related to the last point, an applicant cannot invite the inference that an erroneous view has been taken of some material aspect of the matter simply because that aspect has not been expressly addressed and made the subject of findings: Plaintiff M64 at [36].
Also relevant to the notice requirements, the statute provides that a failure to give notification of the decision would not affect the validity of the decision: s.66(4).
This Court’s jurisdiction on judicial review, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175.
Time limitation for judicial review application
Pursuant to s.477(2) of the Act, an application to this Court for review is to be filed within 35 days of the date of the migration decision.
In the case of a migration decision such as this made by a delegate of the Respondent to refuse to grant a visa, the ‘date of the migration decision’ is the date of the written notice of the decision: s.477(3)(d) of the Act.
Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an application must be made if satisfied that it is necessary in the interests of the administration of justice to make the order.
The statute does not specify particular criteria which must be satisfied to establish that it is in “the interests of the administration of justice” to grant an extension.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Katoa) at [12], the majority explained the relevant considerations for the Court when applying the provision:
Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
See also: Katoa at [35], [39] and [62] (Gordon, Edelman and Steward JJ); AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [10]; BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 at [17].
Although it is often appropriate to assess merits at a “reasonably impressionistic level” or at a “threshold level” in terms of whether the proposed ground(s)“enjoy[s] reasonable prospects of success”, the High Court in Katoa held that it is within the Court’s jurisdiction to have regard to the merits of a ground of review as it considers appropriate in the circumstances of the case: [17]-[19]. For example, at [18]:
If the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.
CONSIDERATION OF THE APPLICATION FOR AN EXTENSION OF TIME
It is not controversial that the present application was filed late.
Under s.477(1) of the Act, any application to this Court is to be filed within 35 days of the date of the migration decision. The migration decision under review was made on 10 March 2020. An application for judicial review in this Court was due to be filed by 14 April 2020. The application was not lodged until 8 February 2021. At the earliest, this application was made 300 days after the expiry of the statutory timeframe (noting it was not accepted for filing in accordance with the Court’s Rules until one day later).
I turn now to consider whether to grant an extension of the time for filing having regard to the established principles.
Delay and explanation
In this case, the period of delay was 300 days.
By the grounds of the application for an extension of time filed on 25 July 2023, the Applicant sought to explain his delay in filing this application as follows:
1. The decision made on 10 March 2020 was not notified to the Applicant according to law. No email address of the Applicant was provided with the application: CB 19. He stated in the form 842 that all written correspondence should he sent to him and he provided a residential address: CB 19 and 43.
2. The Respondent sent the decision to the proposer, but the email address given by the proposer in form 681 only related to the his role as the proposer, and was not the one used to send the decision: CB 19 and 50.
3. The Respondent’s staff in Amman contacted the proposer late at night on 11 March 2018 and asked for his email address. The Respondent used that email address to notify the decision.
4. The Respondent’s records indicate the decision sent to [email protected], but that is a different email address to that on the form 681 and there is no evidence in the Respondent’s file that that email address was ever notified to the Respondent as an email address for correspondence to the Applicant.
5. The proposer did not provide a copy of the notification letter and decision record to the Applicant in Amman. The first the Applicant became aware of the decision was on 8 September 2020, when the Applicant’s solicitor was advised of the decision by the Respondent’s staff in Amman. A request to vacate the decision was made to the Respondent on 13 September 2020: CB 84.
6. On 16 November 2020, the Respondent advised they would not vacate the decision or re-notify the Applicant: CB 105.
7. There was a delay between 22 December 2020 and 9 February 2021, caused by difficulties obtaining instructions over the Christmas and New Year period and during a period of Covid lockdowns. This delay was not inordinate.
8. The application for judicial review is meritorious.
9. The delay has not caused the Respondent any prejudice.
(sic.)
The Court has, in other cases, described a delay of 74 days as “substantial” and a delay of 54 days as likely to be fatal to an application for an extension of time where there is no reason for the delay: see, WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14]; and WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].
Typically the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] (Tran). The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of a long delay: Tran, at [38].
There is no dispute that the Applicant was not validly notified of the second refusal decision, because it was not sent to the Applicant and was instead sent to the email address of his sponsor and brother.
On the evidence before the Court, the Applicant and his legal representative were aware of the second refusal decision by September 2020. Within two days of a copy being provided to the Applicant’s legal representative, he then attempted to have it vacated or revisited.
On 16 November 2020, the Applicant (through his legal representative, by that time the nominated contact) was notified that the second refusal decision would not be vacated or revisited.
However, it was not until 8 February 2021 that the original application in these proceedings was attempted to be lodged. There was no evidence before the Court to explain that part of the delay that related to the period between 16 November 2020 and 8 February 2021. The Applicant’s legal representative told the Court in submissions that this delay was his own doing and he had been affected by the holidays (Christmas and New Year) and other difficulties experienced due to the global COVID-19 pandemic.
Taking the Applicant’s case at its highest, I accept that there is a reasonable excuse for that part of the delay which pre-dated the Department’s confirmation on 16 November 2020 that the second refusal decision would not be revisited.
To the extent that the remainder of the delay, which extended for some 84 days, was sought to be explained by representative error then in my view more is required. It is not enough for a legal representative to claim “representative error”. I found this submission lacking in substance and unpersuasive. On the evidence before the Court, this part of the delay which of itself was considerable and was not adequately explained.
Accordingly, when the Applicant’s explanation is considered as a whole, I do not consider there is a reasonable or acceptable explanation for the delay in the present case. This is a factor that weighs against the grant of an extension of time.
Prejudice
This is a somewhat unusual circumstance wherein, other than the usual matters of costs, there is no particular prejudice that would flow from a refusal of an extension of time for either party.
The Respondent properly accepted that the prejudice to them was limited to cost and inconvenience.
In terms of any prejudice to the Applicant, beyond his time and costs thrown away on account of his choice to pursue this application after the expiry of the statutory timeframe, he also does not suffer any particular prejudice because he is not precluded from making a fresh application for a subclass XB visa, which would be determined by a different decision-maker. Indeed that is the very relief he seeks in these proceedings.
The Applicant’s legal representative submitted that there was a benefit to the Applicant in pursuing the judicial review application as opposed to applying for a new visa. In his opinion, the judicial review process would be expedited and therefore quicker than awaiting an assessment of a new visa application. This opinion was not founded in any evidence before the Court.
The mere absence of prejudice is insufficient to warrant the grant of an extension: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. In the present case I consider this a neutral factor.
The utility of these proceedings at all is a matter considered further in relation to merit.
Merit of the substantive application
The time limitation reflects the Parliament’s intention that an applicant should have only a relatively short time in which to challenge a decision of the delegate. While the discretion of the Court is broad, if it is proper to conclude that a claim is bound to fail, the Court should not permit the application to proceed and accordingly decline to extend time.
The cases make clear that, for the purposes of an extension of time application, the Court is concerned with whether the grounds available to the Applicant are reasonably arguable.
It is useful to commence with the second substantive ground.
Second substantive ground
The second ground of the substantive application (as amended and further amended at the hearing) was as follows:
The delegate’s decision, dated 10 March 2020, is affected by jurisdictional error because it failed to comply with procedural fairness and thereby failed to exercise jurisdiction.
Particulars
(i) The delegate failed to meet reasonable and legitimate expectations that the application was screened in and scheduled to be interviewed. The delegate made the decision without putting the Applicant on notice the status of the application had changed. Further, the delegate did not consider whether to notify the Applicant of the decision to proceed to reject the application without an interview and further processing relating to health and character requirements for the visa, giving the Applicant an opportunity to respond.
By the particulars to this second ground, the Applicant claimed procedural fairness in the unreasonable and illegitimate failure to interview the Applicant before determining the application. It was claimed that the Applicant was not on notice that the status of his application had “changed” from in the “pipeline” for interview to no interview. Further, that the delegate did not consider whether to notify the Applicant of the decision to reject the application without an interview and further processing as to health and character requirements and give him an opportunity respond.
It was accepted that there is no statutory obligation on the Minister or their delegate to conduct an interview of a subclass XB visa applicant. As I understood it, the argument was that an expectation had been created via the communications between the Applicant’s legal representative and the officers of the Department and the Embassy that the Applicant would be interviewed and the failure to then do so was an error of jurisdiction.
The Respondent submitted that the concept of “legitimate expectation” as contended by the Applicant has been disapproved of by the High Court: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326.
In any event, the evidence established the contrary. On a plain and common sense read of the communications in evidence, it is clear that prior to the second refusal decision the Applicant’s legal representative had repeatedly requested that the Applicant be interviewed and carefully crafted his language in an effort to achieve that outcome by creating or reinforcing that idea. It is true that there is no evidence of a response from the Department to such communication as to directly disavow such notion in terms such as “We remind you that this applicant is not guaranteed an interview”. It is also the case that there is evidence of some applicants represented by the Applicant’s legal representative who were scheduled for and did receive an interview. But nowhere does any employee, officer or representative of the Minister undertake that the Applicant is scheduled to be or will be interviewed.
Further, by the example Form 842 - Application for an Offshore Humanitarian (Class XB) visa (Form 842) (as at the date of design) before the Court, it is clear the visa application form advises that:
Not all applicants are interviewed and a decision may be taken on the information provided in your application only. You need to make sure you include all details about your situation in your application.
There is also evidence before the Court that the Applicant signed the original application form which included a reminder that not all applicants are interviewed in relation to their humanitarian claims.
At the time of the “status” update sent to the Applicant’s legal representative from the Department on 26 September 2017, there was no record of the Applicant’s application at all such that this document cannot be relied on as proof of the Applicant’s “status” as awaiting to be scheduled an interview. The document provided to the Department by the Applicant’s legal representative on 24 April 2018 (as amended by the Department officer to indicate the status of the remaining cases on 29 July 2018) did not include reference to the Applicant’s visa application. There is nothing before the Court which proves that references to the “pipeline” meant that the Applicant was scheduled to or could expect an interview.
The failure to initially notify the Applicant directly is without doubt unfortunate. That fact does not invalidate the decision: s.66(4). Further, this error post-dated the decision under review and does not demonstrate an error of jurisdiction.
Whilst it was not understood to be pressed as a particular to this ground, it was ultimately accepted that the initial misplacement of the Applicant’s application (however unsatisfactory) does not underscore an error of jurisdiction.
For these reasons, the second ground of the amended application is without merit and can not succeed.
First substantive ground
The first ground of the substantive application (as amended and further amended at the hearing) was as follows:
The delegate was affected by bias or an apprehension of bias and thereby failed to exercise jurisdiction.
By the particulars to this ground, the Applicant claimed actual or apprehended bias on account of a prior application for another applicant which was assessed by the same decision-maker that assessed the Applicant’s second refusal decision. It was claimed that the decision-maker responsible must have been aware of the identity of the Applicant’s legal representative as common to both matters, that he assisted in having the prior decision vacated, and together with the decision not to interview the Applicant, could only be explained by bias on the part of the decision-maker.
The Applicant’s particulars of this ground are not supported by evidence. In this respect, the Applicant urged the Court to find that the Respondent has information in its possession that would shed light on this bias claim. The onus of proof here rests squarely with the Applicant: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [127]. Although a matter for him, it ought be acknowledged that the Applicant did not avail of orthodox litigation procedures such as subpoenas or discovery processes.
That being so, this ground turns on a finding that the procedure adopted by the decision-maker was unfair in that the Applicant expected to be interviewed but ultimately was not. However, as earlier reasoned, the evidence does not establish any promise or undertaking that the Applicant would be interviewed or any communication on the part of the Respondent (or its employees, officers or delegates) that could reasonably have established that expectation.
In any event, were there a procedural flaw that the Applicant relied on to draw an inference of bias, such serious allegation is not made out to the standard of a fair-minded, lay observer.
Even if the delegate had made decisions on other visa applications for clients of the Applicant’s legal representative, that circumstance is uncontroversial and far from demonstrative of a reasonable apprehension of bias in relation to any particular applicant. Further, in requesting that the second refusal decision be vacated, no issue was raised as to the identity of the delegate who made this decision, or his involvement in any other matters.
Finally, and for completeness, as earlier considered there is nothing preventing the Applicant from making a fresh application and requesting a different decision-maker. There being no merit to the grounds, and no utility to the application or relief sought, I consider these factors weigh strongly against the grant of an extension of the time for filing.
Conclusion
The application in this case being made 300 days outside the statutory timeframe, the Court may only grant an extension of the time within which the application was to be made if satisfied such extension is in the interests of the administration of justice.
Weighing all of the considerations above, I am not satisfied that it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review. The application for an extension of time is dismissed with costs. I am satisfied given the material before the Court that this is an appropriate case and it is reasonable to exercise the discretion to award costs in the scale amount for a final hearing.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 24 August 2023
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