AKD19 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2024] FedCFamC2G 1114

•

8 November 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AKD19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1114  

File number(s): MLG 276 of 2019
Judgment of: JUDGE CORBETT
Date of judgment: 8 November 2024
Catchwords: MIGRATION - application for judicial review and extension of time - protection visa - false information in application - substantial delay - application dismissed.
Legislation:

Migration Act 1958 (Cth) ss 477(2), 477(1), 36(2)(a), 36(2)(aa), 5H(1), 5J(1)(a), 499, 425, 426A(1A)(b), 426A(1A)(a), 477A(2)

Migration Regulations 1994 (Cth) Sch 2
Cases cited:

AWX16 v Minister for Border Protection [2016] FCCA 928

BCL21 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 984

BJT19 v Minister for Migration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870

DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475

Djokovic v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2022] FCAFC 3

DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975

Englezos v Secretary, Department of Social Service [2023] FCA 31

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929; (2001) 64 ALD 9

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1

MZAABPv Minister for Immigration and Border Protection (2016) 152 ALD 478

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319

SZTEF v Minister for Immigration and Border Protection [2015] FCA 719

SZTRY v Minister for 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 (2002) 276 CLR 579

Williams v Spautz (1992) 174 CLR 509

WZAUG v Minister for Border Protection [2017] FFCA 771

Division: Division 2 General Federal Law
Number of paragraphs: 70
Date of last submission/s: 11 October 2024
Date of hearing: 11 October 2024 
Place: Melbourne
Solicitor for the Applicant The applicant appeared in person
Solicitor for the Respondents Mr McDonald, Clayton Utz

ORDERS

MLG 276 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

AKD19

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE CORBETT

DATE OF ORDER:

8 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.

2.The application filed 5 February 2019 for an order extending time pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.

3.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $4,189.38.

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 CORBETT

  1. The applicant seeks an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) within which to seek judicial review of a decision of the second respondent (Tribunal) made 29 June 2016. The Tribunal affirmed a decision of the first respondent (Minister) refusing to grant the applicant a Protection (subclass 866) visa (Visa).

  2. The application for an extension of time was filed with the Court on 5 February 2019, which was two years, six months and two days (or 916 days) after the 35 day time limit to make an application to this Court under s 477(1) of the Act.

  3. This proceeding was listed for an interlocutory hearing before the Court at Melbourne on 11 October 2024 at 10.15am.

  4. References in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit “R1”.

    BACKGROUND

  5. The applicant is a citizen of Malaysia who entered Australia on 30 January 2015 on an Electronic Travel Authority (subclass 601) visa (CB 23, 71).

  6. On 18 June 2015, the applicant applied for the Visa on the basis that he feared personal harm from a “loan shark” to whom he owed money and that the loan shark had caused damage to the applicant’s personal property in Malaysia (CB 34-9).

  7. On 19 June 2015, a delegate of the Minister acknowledged that the application for the Visa complied with validity requirements and invited the applicant to attend an interview before the delegate (CB 44-49). The applicant did not attend the interview (CB 72).

  8. On 31 August 2015 a delegate of the Minister refused to grant the Visa. The delegate was not satisfied the applicant met the criteria in ss 36(2)(a) or 36(2)(aa) of the Act (CB 80).

  9. On 25 September 2015, the applicant applied to the Tribunal for review of the delegate’s decision (CB 81-99). The application for review enclosed a copy of the delegate’s decision, an image of a sign in Malay extracted from the internet, and an image of a car covered in what appears to be paint (CB 98-9). The application also enclosed a “letter of appeal of application” dated 24 September 2015, which asserted that the applicant did not receive a “letter of acknowledgment” from the delegate or an invitation to attend an interview (CB 100-1).

  10. On 26 May 2015, the Tribunal invited the applicant to attend a hearing on 28 June 2016 (CB 111-2). There was no response to that invitation.

  11. A hearing was held at the Tribunal on 28 June 2016, but the applicant did not attend (CB 121-2).

    TRIBUNAL’S DECISION

  12. On 29 June 2016, the Tribunal delivered written reasons in which the member affirmed the delegate’s decision to refuse to grant the Visa (Decision) (CB 125-37). In paragraph three of the Decision, the member said (CB 131):

    On 26 May 2016, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 28 June 2016. The applicant was advised if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. In the circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

  13. The Decision was sent to the applicant with an information “fact sheet” that included the following paragraph regarding the judicial review process (CB 128):

    “Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.”

  14. In the Decision, the Tribunal considered the criteria for the Visa prescribed by s 36(2) of the Act, Sch 2 of the Migration Regulations 1994 (Cth), as well as the definitions of a refugee in s 5H(1) of the Act and the meaning of a “well-founded fear of persecution” in s 5J(1)(a) of the Act (CB 131-2). The Tribunal then considered the mandatory considerations in Ministerial Direction No.56 made under s 499 of the Act.

  15. The Tribunal correctly identified the “primary issue” to be determined by the review as “whether there is a real chance that, if he returns to Malaysia, the applicant will be persecuted for one or more of the five reasons in s 5J of the Act and, if not whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Migration Act” (CB 132 [15]).

  16. The Tribunal then considered the information and images put before it by the applicant, including claims that if he were to return to his parents’ or friends’ houses in Malaysia, he would put their lives in danger and the loan shark would try to kill them and himself (CB 132 [12]-[14]). The Tribunal also considered claims that the applicant’s belongings had been damaged by the loan shark (CB 132 [13]-[14]).

  17. The Tribunal observed at paragraph seventeen of the Decision (CB 133 [17]) that:

    The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all of the allegations made by the applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

  18. In arriving at the Decision, the Tribunal relied on the evidence and information submitted by the applicant (CB 133 [19]). The Tribunal considered the applicant’s failure to elaborate on the particulars of the loan, including how much he had borrowed, the conditions of the loan, the amount of interest that was to be paid on the loan and whether he ever paid back any of the money that he owed (CB 133 [18]).

  19. The Tribunal also considered the assertions that the applicant’s property, car, home and motorbike were damaged and that the loan shark used red paint to damage the applicant’s belongings, however, it was noted that the applicant was unable to provide further details, including when the damage occurred and the extent of the damage. Although the applicant provided an image of a car covered in what appears to be paint, the Tribunal stated that there was nothing in the photo to indicate that it was the applicant’s car. The applicant also provided a photo of a sign in Malay, however, the applicant did not provide a translation of the sign or indicate the relevance of it to his claim. The Tribunal concluded that the image was extracted from the internet as it had a blog address recorded on the bottom of the image (CB 133 [19]).

  20. The Tribunal considered that the applicant claimed to have sought help regarding the loan shark, however, the Tribunal observed that he was unable to elaborate further on


    who he sought help from, when he tried to get help or what help he tried to obtain (CB 133 [19]).

  21. The Tribunal did not accept, on the limited evidence before it, that the applicant’s assertions regarding him borrowing money from a loan shark and the subsequent property damage were credible, nor did it accept that the applicant sought help in relation to the alleged problems he had with the loan shark (CB 133-4 [19]-[20],[23]).

  22. The Tribunal was not satisfied that the applicant was a refugee within the meaning of s 5H of the Act and did not have a well-founded fear of persecution as required by s 5J of the Act. The Tribunal concluded that the applicant is not a person in respect of whom Australia has protection obligations because he did not satisfy the protection obligations under ss 36(2)(a) and 36(2)(aa) of the Act respectively (CB 133-4 [19]-[20],[23]-[26]). The Tribunal affirmed the decision not to grant the applicant the Visa.

    PROCEEDINGS IN THIS COURT

  23. On 5 February 2019, the applicant filed the application for judicial review of the Decision which incorporated the application for an extension of time pursuant to s 477(2) of the Act. In that application the grounds for an extension of time were as follows (verbatim):

    1.The interests of justice favour the extension of time for the reasons set out in the affidavit of {the applicant} dated 4 February 2019.

    Because I need Protection from this country. My hearing at the AAT was on 28th June 2016. The Tribunal had invited me to attend this hearing on 26 May 2016, but as I had no lawyer, no English language skills, and am suffering from mental health issues as a result of the trauma stemming from my persecution.

  24. The application listed the following grounds of review (verbatim):

    1.   The Tribunal erred in failing to take into account relevant considerations, namely the country information pertaining to the prevalence of loan sharks in Malaysia

    Particulars

    1.1. The Tribunal based its decision on a lack of ‘evidence’ and ‘detail’ relating to my protection claims.

    1.2. This was unreasonable, and failed to consider the following:

    1.2.1.That I was unrepresented in relation to the review;

    1.2.2.That I spoke English as a second language and did not understand the concept of the review;

    1.2.3.That I am a victim of trauma in my home country, and as such am a vulnerable applicant;

    1.2.4.Extensive country information pertaining to the prevalence of loan sharks in Malaysia and the harm that they commit without consequence from the Malaysia and authorities.

  25. In support of the application for an extension of time the applicant filed an affidavit affirmed on 4 February 2019 in which he said (verbatim):

    (1)I am the applicant in this proceeding. Except where otherwise stated, I make this affidavit from my own knowledge.

    (2)On 18 June 2015, I applied for a Protection (subclass 866) visa.

    (3)That application was refused by the Department of Home Affairs on 25 September 2015, without interviewing me.

    (4)I thereafter applied to the Administrative Appeals Tribunal (AAT) to review my decision on 28 September 2015.

    (5)My hearing at the AAT was on 28th June 2016. The Tribunal had invited me to attend this hearing on 26 May 2016, but as I had no lawyer, no English language skills, and am suffering from mental health issues as a result of the trauma stemming from my persecution in Malaysia, I was too afraid to attend. I believe this caused a lot of issues with my credibility and ability to speak present detailed protection claims.

  26. At the hearing before this Court on 11 October 2024, the applicant appeared in person and was assisted by an interpreter fluent in the Malay and English languages.

  27. The Minister was represented by Mr McDonald, solicitor.

  28. The applicant confirmed receipt of the Court Book and the Minister’s Outline of Submissions.

  29. The Court explained to the applicant that because his application for judicial review was filed with the Court more than two years after the date of the Decision, he must satisfy the Court that he should be granted an extension of time to obtain judicial review. To obtain an extension of time, the applicant would need to explain the delay and address the merits of his application for judicial review.

  30. The Court explained that if an extension of time was granted then there would be another hearing to consider whether the Tribunal had made a “jurisdictional error” and if there was a “jurisdictional error”, the Tribunal would be required to reconsider his application for the Visa. However, it was not the role of this Court to grant him a Visa or reconsider the merits of his application. The Court explained that the role of the Court was limited, and it was not the function of the Court to grant him a Visa (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272).

  31. When asked why the Court should extend the time to commence the application for review the applicant said, “because I want to stay here longer”. When asked why it had taken him more than two years and six months to bring the application to this Court, he said that he was “afraid to come to the Court”.

  32. The Court then referred the applicant to the Tribunal’s finding that it did not accept what he said about borrowing money from a “loan shark”. When asked what would happen to him if he returned to Malaysia, the applicant said “nothing”. He told the Court that he had paid someone $400.00 to complete his application and affidavit “because [he] would like to live and work in Australia and have a visa”. The Court asked him about the claim that he had borrowed money from a loan shark and that he feared harm if he returned to Malaysia. He said that the person he paid just put that in the application to get the Visa and that the claim was not true. He did not identify the person he had paid. He did not seek to give any other reason for seeking a Protection visa.

  33. There was no other explanation given by the applicant to the Court for the delay in filing the application for judicial review.

  34. The applicant did not seek to identify any “jurisdictional error” or mistake in the Decision or to clarify or expand on the grounds for an extension in the application for review filed 5 February 2019. There were no other documents or evidence that he wished to rely upon in support of his application for an extension of time.

  35. Mr McDonald then made submissions on behalf of the Minister. He read and relied on the affidavit of service of Charlee Austin Hawkes affirmed 7 August 2024 which confirmed service on the applicant of the Court Book. The Court Book was tendered and marked exhibit “R1”. Mr McDonald also relied on the Outline of Minister’s Submissions filed 7 August 2024.

  36. It was submitted that the Court may grant an extension of time under s 477(2) of the Act if it is satisfied that it is necessary in the interests of justice to make the order. The Court may consider a “myriad of facts and circumstances,” including the extent and reason for the delay; whether there is any prejudice to the Minister; whether there is any prejudice to third parties; and the merits of the underlying application (Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 276 CLR 579 at [12] (Tu’uta Katoa); Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-9 (Hunter Valley). The Minister conceded that there is no prejudice suffered by the grant of an extension, but that the absence of prejudice in itself is insufficient to warrant the grant of an extension (SZTRY v Minister for Border Protection [2015] FCAFC 86 at [6]). In this case, it was submitted that the applicant’s delay was extreme and that the grounds of review now had no merit to warrant an extension.

  37. The Court was also referred to the recent decision in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 per Horan J (DNK17). Mr McDonald quite properly drew the Court’s attention to the similarities between the election of the Tribunal to proceed to determine the application for review in that case and the Decision where the Tribunal made a similar election.

  1. In this case and in the case of DNK17, the applicant did not appear at the time allocated by the Tribunal for a hearing. In both cases the applicant was invited to attend that hearing under s 425 of the Act because the Tribunal had considered information provided but was unable to make a favourable decision on that information alone (DNK17 at [17] and CB 111).

  2. In this case and in DNK17, the Tribunal elected to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The Tribunal did not simply dismiss the application without further consideration under s 426A(1A)(b) of the Act. The Tribunal elected to follow the course permitted by s 426A(1A)(a) of the Act and determine the review on the merits. As noted in paragraph twelve above, the Tribunal in this case explained the reason for making that election in paragraph three of the Decision.

  3. In DNK17, Horan J held that in the circumstances of that case, it was unreasonable for the Tribunal to make a similar election and that the Tribunal’s decision was affected by jurisdictional error (DNK17 at [108] and [113]). His Honour held that the Tribunal erred by not providing an “intelligible justification” of the election to determine the review, rather than dismiss the application. In DNK17, the applicant made three requests for an adjournment of the hearing and indicated a desire to be heard by the Tribunal. His Honour explained that it was unreasonable for the Tribunal not to have weighed up and explained the consequences of adopting the option of review, rather than dismissal where the Tribunal was previously unable to make a favourable decision and sent an invitation under s 425 of the Act (see DNK17 at [107]).

  4. It was submitted on behalf of the Minister that there were several distinguishable features of the present case to the facts in DNK17.  In this case, there was no “engagement” by the applicant with the Tribunal whereas in DNK17 there were repeated requests for adjournments based on medical certificates. It was submitted that in this case there was no response to the invitation letter and no indication by the applicant of a desire to put further information before the Tribunal. Further, it was submitted that paragraph three of the Decision did provide an “intelligible justification” for proceeding under s 426A(1A)(a) and it was not “unreasonable” or unintelligible for the Tribunal to proceed as it did (CB 131).

  5. Mr McDonald invited the Court to accept the applicant’s evidence in paragraph five of his affidavit affirmed 4 February 2019 (CB 144-5) that he was “too afraid” to attend the hearing before the Tribunal and therefore, this case was different to the exercise of discretion by the Tribunal in DNK17. In that case, Horan J reasoned that the course of dismissal under s 426A(1)(b) presented an applicant with the option of seeking re-instatement which should have been available to the applicant, rather than dismissal on the merits (DNK17 at [97]). In this case, it was submitted that even if the Tribunal had dismissed rather than decided the review, the applicant made an active decision not to attend and provide further information. Therefore, it was not unreasonable to proceed as the Tribunal did and when deciding if the Tribunal acted “reasonably”, in making an election, the Court must look at the “circumstances of each case” (DNK17 at [99]).

  6. Mr McDonald then addressed the grounds of review in the application for judicial review. It was submitted that the Tribunal did not need to consider “country information” pertaining to loan sharks in Malaysia because the Tribunal was not satisfied that there was evidence to establish that the applicant had borrowed money from a loan shark or that the applicant would be pursued if he returned to Malaysia (CB 133 [18]-[21]). This was a reasonable and logical conclusion in the circumstances and meant that the Tribunal did not need to consider country information. Nevertheless, in paragraph nine of the Decision the Tribunal did have regard to Ministerial Direction No. 56 and country information prepared by the Department of Foreign Affairs and Trade.

  7. In relation to the assertion that the Decision was unreasonable, it was submitted that there were no findings in the Decision that lacked an evident and intelligible justification in light of the paucity of evidence before the Tribunal (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] and Djokovic v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [34]-[35]). None of the applicant’s reasons for not attending the hearing before the Tribunal, namely, being unrepresented, having poor English language skills and suffering trauma and mental health issues, were acceptable explanations for the applicant’s delay or grounds for review for jurisdictional error (see BJT19 v Minister for Migration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40]; Englezos v Secretary, Department of Social Service [2023] FCA 31 at [38]; WZAUG v Minister for Border Protection [2017] FFCA 771 at [28] and AWX16 v Minister for Border Protection [2016] FCCA 928 at [45]).

  8. Finally, it was submitted for the Minister that the applicant’s admission to the Court that he did not fear harm, that his previous claims for protection were untrue and his explanation for not appearing before the Tribunal meant that merits of the application for review were “poor”, therefore, no extension of time should be granted.

    CONSIDERATION

  9. This is an application for an extension of time under s 477(2) of the Act. In Tu’uta Katoa, Kiefel CJ, Gageler, Keanne and Gleeson JJ said at [12] (when considering s 477A(2) of the Act which is in substantially the same terms as s 477(2) of the Act):

    On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s477A(2)(a) and the courts satisfaction that an order extending time “is necessary in the interests of the administration of justice”. 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 s477A(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 3rd parties in 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.

    DELAY

  10. In this case, the delay in bringing the application for an extension of time is substantial. The only credible explanation given for the delay is that the applicant was “afraid” to go to Court. There was no evidence presented to substantiate or confirm that fear or to establish any underlying medical or psychological basis for it. The applicant did not give evidence or assert that he did not know that there was a time-limit on applications for review, that he lacked the financial resources to seek legal advice, or that he sought and was denied assistance from the many volunteer organisations available to self-represented applicants.

  11. In Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] Wigney J considered an eighteen month delay between Tribunal decision and application to the Federal Court under s 477A(2) of the Act, and said:

    The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott(1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time.

  12. In a recent decision of this Court in BCL21 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 984, Judge Gerrard held that a delay of 395 days between the Tribunal decision and application to the Court was excessive, especially so in the absence of a credible explanation.

  13. In SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38], Foster J said:

    In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore failed to do so within the stipulated time frame, ignorance of these requirements (without more) is generally not regarded as a satisfactory explanation for delay.

  14. In SZTEF v Minister for Immigration and Border Protection [2015] FCA 719 at [44], Wigney J said:

    Section 477(2) does not define or confine the matters that the Federal Circuit Court can or should have regard to in considering the interests of the administration of justice. In Hickey v Australian Telecommunications Commission (1983) 72 FLR 291 at 297, Lockhart J said the following in relation to power to extend the time in which an application may be made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act):

    … the court should not surround the exercise of its discretion with unnecessary constraints such as a requirement that there be special circumstances or considerations of that kind.  The statute does not require them.  Nor should the courts.  It is best left to the good sense of the judge hearing each case to determine whether, on the evidence before him, the court’s discretion should be exercised in favour of granting an enlargement of time to bring an application for an order for review. 

  15. The applicant asserted in the application for an extension of time (which he says he did not prepare) that the reason why an extension of time was required was that he had no lawyer, no English language skills and was suffering from mental health issues because of “the trauma extending from [his] persecution”. It is accepted that the applicant had no lawyer and has limited command of the English language, but those are not unique or satisfactory reasons for a delay of this length. There was also no evidence of any “trauma” or that the applicant suffered from mental health issues arising from any persecution. Given the admissions made by the applicant at the hearing before this Court, it could not be suggested that he suffered “trauma” or persecution because of threats to his well-being by loan sharks.

  16. There was also no evidence of other credible reasons for an extension of time such as a failure to properly notify the applicant of the decision, temporary financial hardship (properly explained), incorrect advice or medical emergency.

  17. Whilst the applicant may have been apprehensive about the process of review by this Court, a delay of two years, six months and two days without a substantial and persuasive explanation supported by evidence is fatal and it would not be necessary in the interests of the administration of justice to permit an extension of time after a delay of that length.  

  18. Further, it would not be in the broader interests of the administration of justice to permit the applicant to benefit from an extension of time to enable him to pursue an application that was clearly without a proper, factual basis. If an extension of time were granted and the applicant permitted to proceed with an application for judicial review, such an application may well be permitting an abuse of process of the Court. This Court has the power to summarily dismiss and stay a claim that is an abuse of process (r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)) and is duty bound to protect itself against an abuse of its processes (see Williams v Spautz (1992) 174 CLR 509 at 520).

    PREJUDICE

  19. The Minister correctly concedes that there is no prejudice that would be suffered by the Minister in the grant of an extension of time, however, the absence of prejudice is insufficient to warrant the grant of an extension (see Hunter Valley at 348-9 and SZTRY v Minister for Border Protection [2015] FCAFC 88 at [6]). Here, the broader interests of the administration of justice, including the expectation of other litigants awaiting hearings in this Court, do not permit a claim for review to proceed, especially where there is no factual foundation (see Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929; (2001) 64 ALD 9 at [62] per Gyles J).

    MERITS

  20. On an impressionistic evaluation of the proposed grounds of review in the application for review those grounds are unarguable.

  21. In DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 at 492-3, the Full Court of the Federal Court provided guidelines for the proper exercise of the power in s 477(2) of the Act. The Court said that “the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than impressionistic consideration of the proposed grounds of review”. The Court further said that if “a court seeks to assess the merits of the proposed grounds of review against a standard of whether they would ultimately succeed on the hearing of the application, the conclusion will usually be drawn that it has misconceived its function and power”.

  22. In that case, the Full Court endorsed the decision of Mortimer J (as Her Honour then was) in MZAABPv Minister for Immigration and Border Protection (2016) 152 ALD 478 at 486 [38], 598 [63] that the correct approach to the assessment of the merits of the proposed application for the purpose of deciding whether to extend time “may be expressed by the use of language such as whether the ground is “arguable”, “reasonably arguable”, “sufficiently arguable,” or has “reasonable prospects of success”.

  23. In this case, the grounds of review identified in the application for review are not arguable because the decision was not unreasonable for any of the grounds identified. The Tribunal did consider all of factors identified in paragraph one of the grounds of review. Country information appears to have been considered at paragraph nine of the Decision, but it was also reasonable not to consider that information where the Tribunal reached the conclusion that the applicant did not meet the criteria in ss 36(2)(a) and 36(2)(aa) of the Act because the applicant did not have a well-founded fear of persecution and complimentary protection was not available. That conclusion was open on the limited information provided by the applicant which he did not seek to supplement either before or at the hearing (which he elected not to attend).

  24. The Minster identified an unarticulated ground for review based on the recent Federal Court of Australia decision in DNK17. There are similarities between the election by the Tribunal in that case and the Tribunal’s election to determine the applicant’s application on the merits in this case. That may mean it would be “arguable”, “reasonably arguable” or “sufficiently arguable” that the Tribunal erred in proceeding to determine the application for review under s 426A(1A)(a) rather than dismissing the application under s 426A(1A)(b) of the Act.

  25. Whether paragraph three of the Decision is a sufficient or reasonable explanation for the election may be “arguable” (CB 131). It is certainly open to argument that a decision-maker acting reasonably should have elected to dismiss the application under s 426A(1A)(b) rather than determine it (consistent with the reasoning of Horan J in DNK17), thereby falling into error. Therefore, it may be arguable that there has been jurisdictional error in affirming the delegate’s decision to dismiss the application for the Visa.

  26. Without wishing to err in the way suggested by the Court in DHX17 by considering whether the application for review may ultimately succeed on the potential grounds identified in DNK17, it would not be necessary in the interests of the administration of justice to extend the time in this case because even if there were jurisdictional error, no different outcome could possibly result (MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [39],[51], [84] and [157] (MZAPC) and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1 at [73]-[83]).

    INTERESTS OF ADMINISTRATION OF JUSTICE

  27. The Court is not satisfied that it is necessary in the interests of the administration of justice to grant an extension of time pursuant to s 477(2) of the Act. This is because of the length of the applicant’s delay, the rudimentary explanation given by the applicant (which was not supported by any medical or other evidence) and the admissions of the applicant as to the falsity of his application for the Visa.

  28. The application for an extension of time is dismissed.

  29. In dismissing the application for an extension, the Court is mindful that, if the application for the Visa had a proper factual foundation, the applicant may have an “arguable” ground of review (not articulated in the application for review or affidavit in support) based on the decision of Horan J in DNK17. There may have been a procedural irregularity in the decision-making process of the kind referred to in MZAPC at [51]. However, given the circumstances of this case, that ground alone is not persuasive or a reason to exercise the Court’s discretion to grant an extension of time, nor are the other grounds for review identified by the applicant in the application for review and affidavit in support, which for the reasons submitted by the Minister, do not disclose “jurisdictional error”.

  30. The solicitor for the Minister sought an order that the name of the first respondent be amended to the Minister for Immigration and Multicultural Affairs. He also sought the first respondent’s costs and disbursements of and incidental to the proceeding in the sum of $4,189.38 which is the applicable scale amount for a contested and interlocutory application of this kind.

    ORDERS

  31. The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.

  32. The application filed 5 February 2019 for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.

  33. The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $4,189.38.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.

Associate: 

Dated:       8 November 2024

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22
MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20