ALG17 & Ors v Minister for Immigration & Anor
[2017] FCCA 2816
•20 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALG17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2816 |
| Catchwords: PRACTICE & PROCEDURE – Application for an extension of time within which to make a competent application to the Court – factors considered – whether there are reasonable prospects of success – no reasonable prospects of success – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.476, 477 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia[2013] FCA 1284Error! Hyperlink reference not valid.(2013) 236 FCR 442 AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 |
| First Applicant: | ALG17 |
Second Applicant: Third Applicant: | ALH17 ALI17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 317 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 6 November 2017 |
| Date of Last Submission: | 6 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2017 |
REPRESENTATION
| First Applicant: | In person and on behalf of the second and third applicants |
| Solicitors for the Respondents: | Ms J Strugnell of Minter Ellison Lawyers |
ORDERS
The application to extend time made pursuant to s.477(2) of the Migration Act 1958 (Cth) on 3 February 2017 is refused.
The first and second applicants pay the first respondent’s costs set in the amount of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 317 of 2017
| ALG17 |
First Applicant
ALH17
Second Applicant
ALI17
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 3 February 2017 seeking an extension of time within which to make a competent application to the Court pursuant to s.476 of the Act, which seeks review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 20 January 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.
Section 477(1) of the Act requires that any such application be made within 35 days of the date of the Tribunal’s decision. In the current case, the application was filed outside that time limit by approximately one year. The application is therefore not competent.
Section 477(2) of the Act provides for an extension of time within which to make a competent application, if the applicant makes an application for an extension of time in writing, and the Court considers that it is in the interests of the administration of justice to extend time.
The applicants have made such an application in writing. The grounds for the extension of time are in the following terms:
“1. The applicant was misled about the limitation of lodgment time on Court case.
2. The applicant has strong claim in this to seek the judicial review on his case.”
[Errors in original.]
The issue for the Court now, is whether it is in the interests of the administration of justice to extend time. The factors to be considered in relation to the question of the extension of time are not exhaustive. However there are a large number of authorities which provide direction and guidance to this Court, as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284Error! Hyperlink reference not valid.(2013) 236 FCR 442, SZUWX v Minister for Immigration and Border Protection[2016] FCAFC 77Error! Hyperlink reference not valid.(2016) 238 FCR 456, MZZLD v Minister for Immigration and Border Protection[2016] FCA 1201; (2016) 154 ALD 316, MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110; (2016) 152 ALD 478, Ahmed v Minister for Immigration and Border Protection[2016] FCA 751 and SZTES v Minister for Immigration and Border Protection[2015] FCAFC 158, see also Hunter Valley Developments Pty Ltd v Cohen[1984] FCA 176; (1984) 3 FCR 344 at [18] – [23]).
In the current case, the particular factors arising from the circumstances presented in considering the exercise of the discretion to extend time appear to be, the length of the delay, whether any satisfactory or reasonable explanation has been given for the delay and whether the proposed substantive application for judicial review is sufficiently, or reasonably arguable, or has reasonable prospects of success, or has such merit to justify the extension of time to allow the matter to proceed to a final hearing in the interests of the administration of justice. In deciding whether to grant an application for an extension of time, the grounds of the proposed substantive application should have such prospects of success so as not to render the extension of time an exercise in futility.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), and the affidavit of Usipua Talele Soliola, Paralegal, made on 30 October 2017.
Orders were made a Registrar of the Court on 30 March 2017 which, amongst other things, gave the applicants the opportunity to file any amended [proposed substantive] application, any further evidence by way of affidavit and written submissions in the matter. The applicants filed no further documents. On 15 June 2016, the Registrar set the matter down for the hearing of the extension of time on 6 November 2017. The Minister filed written submissions on 30 October 2017.
Before the Court, the applicants appeared in person with the assistance of an interpreter in the Indonesian language. The Minister was represented by a solicitor. Only the first applicant sat at the bar table. The second applicant remained at the back of the Court and occasionally stepped outside the Court to look after their young children (including the third applicant). The first applicant said that he would speak on behalf of both the second and third applicants.
It is quite clear from the first applicant’s submissions that he has misunderstood the nature of the proceedings that he and his wife have sought to initiate in this Court. He stated that he would “like” to stay here in Australia, and for his family to remain here.
The interpreter was asked by the first applicant to translate the written submissions that he had brought to Court. The essence of these submissions were that the first applicant feared harm from the Islamic movement, that he did not want to return to Indonesia and that he wanted the Australian government and the Court to give him permission to stay in Australia. He asked that the Court take pity on him and his family. He also made reference to coming to Australia as a young man with his mother, and did not know anything about “passports” or “visas”. I understood this to be an attempt to address the Tribunal’s finding as to why the first applicant waited 14 years before applying for a protection visa in Australia. [However I note that on the evidence before the Court, it would appear that the length of the delay is longer than 14 years.]
As I explained to the first applicant, this Court has no power to grant the applicants protection visas. The first applicant’s submissions did not reveal any basis on which to extend time in the interests of the administration of justice.
The length of the delay in this case is substantial. An absence of any reasonable and acceptable explanation (in the context of the length of the delay), in the circumstances, may be sufficient to justify the refusal of the extension of time (AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 at [56] – [62]. I note the delay in that case was approximately 8 months as compared to approximately 12 months in the current case).
The explanation for the delay as expressed in the grounds of the application to extend time is reproduced above at [4].
The applicants were given the opportunity to file any evidence by way of affidavit in support of their application. They have not done so. What remains therefore, is a bare assertion that the applicants were misled about the 35 day time limit pursuant to s.477(1) of the Act.
In the absence of any evidence from the applicants, it cannot be said that they have provided any adequate explanation for the delay.
The Minister has brought evidence to this Court which is directed to some of the period of the delay. It is to be remembered that the Tribunal’s decision was made on 20 January 2016. The affidavit evidence of Ms Usipua Talele Soliola is that on 17 February 2016, the applicants (through their representative migration agent) requested that the Minister intervene pursuant to s.417 of the Act and grant them a more favourable outcome than that of the Tribunal. On 13 January 2017, the applicants were advised of the unsuccessful outcome of their Ministerial request (see annexure “UTSI” of the affidavit of Ms Usipua Talele Soliola).
It may be that the delay was occasioned by the applicants’ request for Ministerial intervention. The Minister submits in writing that pursuing Ministerial intervention instead of judicial review is not an adequate justification for the delay (WZAVL v Minister for Immigration and Border Protection [2016] FCA 334 and see [17] of the Minister’s written submissions).
I sought clarification from the Minister’s solicitor of the extent of the Minister’s submission in this regard. If the Minister’s submission sought to imply some rigid application of the principle that the pursuing of Ministerial intervention is not a sufficient justification for delay, then I reject that proposition.
The many authorities on this issue, in my view, are clear. Whether such an explanation can be said to justify the delay depends on the circumstances of each individual case (SZGNO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1816 at [11] per Graham J, SZFGO v Minister for Immigration & Citizenship [2008] FCA 1478 at [17] – [21] per Edmonds J, Hui v Minister for Immigration [2011] FMCA 486 at [29] – [30] per Smith FM, Kaur v Minister for Immigration & Anor [2010] FMCA 634 at [58] – [72] per Barnes FM (as Her Honour then was) and MZYII v Minister for Immigration & Citizenship [2011] FMCA 193 at [21] per Riley FM (as Her Honour then was)). The Minister’s solicitor agreed.
It is the case that if an applicant, with informed consent, pursues Ministerial intervention instead of judicial review, this may be said not to constitute an adequate justification for delay given the applicant’s election.
In the current case however, the absence of any further explanation, and importantly, the absence of evidence, leaves the applicants with a bare assertion of having been misled. There was nothing from the first applicant before the Court to explain this. In the circumstances, this cannot be said to be a reasonable explanation for the delay.
The applicants’ second ground in relation to the application for an extension of time lacks merit. It does not provide a satisfactory basis such as to argue for the extension of time. The second ground asserts that the “applicant” has “strong claim[s]”. On the evidence before the Court, that is not the case.
The applicants’ proposed substantive application is in the following terms:
“1. The First Respondent and the Second Respondent have not considered the applicant’s experience in Indonesia, especially the attacks happened in his Church in Indonesia.
2. The First Respondent and Second Respondent have not treated the applicant fairly, the first Respondent stated in the decision letter that: ‘I find the applicants can rely on State protection. The country information indicates that the Indonesian Authorities would provide the applicants with a reasonable level of protection.’ This statement is the assumption made by the First Respondent and did not have any evidence to show. If the Authority would provide the reasonable protection, the Church which the applicant attended in Indonesia would not been attacked several times.
3. The First Respondent and the Second Respondent stated many times about the religion freedom in Indonesia, however, even it has been stated in the Law, the government has not executed, that the attacks against the Christian have been taken place all the time.
4. The first Respondent should put him/herself in the applicant’s circumstance that the applicant was very hesitate to explore himself to the Department of Immigration and Border Protect for the visa options after his visa expired, he has been experienced the dark period in Indonesia and he has to recollect the trust to the Authorities including Australia Authority.
5. There is serious bias found in the interview with the second respondent.”
[Errors in original.]
The applicants are citizens of Indonesia (CB 13, CB 25 and CB 32). The applicants’ applications for the protection visas were received by the Minister’s department on 24 February 2014 (CB 1 to CB 49). The second and third applicants applied as members of the first applicant’s family unit. The first applicant attached a written statement of his claims to protection with the application (CB 43).
The first applicant claimed to fear harm on the basis of his Christian religion. He claimed to have gone to a “church called GDPI every Sunday” with his family, that “Christian (sic) ha[d] been attacked by Islamist all the time” and that both “Muslim extremists and local government authorities often threatened to tear down a church” (CB 43).
The first applicant claimed that following an attack on the church he attended in 1987 in which some of his “brother and sisters” in the church were “injured badly”, the first applicant, his mother and his brother obtained tourist visas and left for Australia in 1988. Around 1999 his mother was “caught by Immigration” and sent back to Indonesia. The first applicant met his wife, the second applicant, in 2012 and the third applicant was born in Australia in 2013 (CB 43).
The first applicant was invited to, and attended an interview with the delegate on 13 October 2014 (CB 61 to CB 67 and CB 92.6). The delegate refused the applications on 5 November 2014 (CB 77 to CB 103). The applicants applied for review to the Tribunal on 7 November 2014 (CB 106 to CB 108). The applicants were invited to, and attended a hearing before the Tribunal on 19 January 2016 (CB 125 to CB 135 and CB 139 to CB 141). The first and second applicants gave evidence to the Tribunal (CB 139).
The Tribunal affirmed the delegate’s decision on 20 January 2016 and the applicants were notified by letter sent by email to their representative authorised to receive correspondence on their behalf on the same date (CB 142 to CB 156).
Before the Tribunal, the first applicant also claimed to fear harm on the basis that he had been away from Indonesia for a “number of years” and would be “unable to secure employment there and support his family” ([8] at CB 151).
On the basis of country information, the Tribunal put to the first applicant that the chances of him suffering harm on the basis of his Chinese ethnicity or Christian religion were remote ([18] at CB 154 and [19] at CB 154 to CB 155). The first applicant’s responses did not persuade the Tribunal to depart from the position in the country information ([18] at CB 154 to [19] at CB 154 to CB 155).
Therefore, the Tribunal found that the chance of the first applicant suffering serious harm on the basis of his ethnicity or religion was remote ([20] at CB 155). Further, although country information indicated that ethnic Chinese, or Christian Indonesians, can encounter discrimination in employment, it did not suggest that employment was denied to such individuals. The Tribunal found that as the first applicant had work experience in Australia, this should assist him in obtaining a job in Indonesia. Further, the Tribunal found that the risk of serious harm to the second and third applicants on the basis of their ethnicity or religion was remote ([21] at CB 155).
The Tribunal found that the “risk of the applicants suffering serious harm in Indonesia based on their ethnicity, religion or on any other ground” was remote ([22] – [23] at CB 155). For the same reasons as found earlier in its decision record, the Tribunal also found that the applicants did not meet the complementary protection criterion for the grant of the visas ([24] at CB 155 to CB 156 to [27] at CB 156).
As the Minister submits, proposed ground one is “misconceived” ([20] of the Minister’s written submissions). The Tribunal accepted the first applicant’s claims as to his experience in Indonesia. However, the Tribunal found that the first applicant would not suffer harm given his own evidence as to what had occurred, and country information to which it had regard.
The Tribunal’s findings in this regard were all reasonably open to it on was before it. In essence, proposed ground one seeks merits review. No error is indicated in proposed ground one such as to support the extension of time.
To the extent that proposed ground two complains about the delegate’s decision, then it is the case that this Court has no jurisdiction to review the delegate’s decision (see s.476(2) of the Act).
In relation to the Tribunal, the complaint appears to be that the Tribunal unfairly found that the applicants could rely on State protection. However the Tribunal made no such finding. It was not necessary for the Tribunal to consider State protection where it found that the first applicant’s claims to fear harm were not well-founded.
Further, no denial of procedural fairness is evident in the circumstances presented in this case. The applicants attended a hearing before the Tribunal and, on the evidence before the Court, the issues dispositive of the review were discussed (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515).
It appears the complaint in proposed ground three is that the Tribunal took into account information about laws relating to religious freedom in Indonesia, but the Indonesian government does not enforce such laws.
The Tribunal did have regard to the provisions of the Indonesian Constitution. However, it also had regard to country information which dealt with the issues of both official and societal discrimination ([16] at CB 153). Again, the ground seeks impermissible merits review and lacks merit such as to support the extension of time.
Proposed ground four asserts that the first respondent, or in context, the delegate, should put himself in the [first] applicant’s circumstances. As stated above, the Court has no jurisdiction to review the delegate’s decision. If this is meant to be a complaint against the Tribunal, then it is not a proper assertion of jurisdictional error.
If proposed ground four is a complaint that the Tribunal should have “understood” the first applicant’s delay in applying for protection after arriving in Australia, then while the Tribunal noted the delay, it did not make any finding about it. Even though it would have been open to the Tribunal to have done so (Selvadurai v Minister for Immigration and Ethnic Affairs & Anor [1994] FCA 1105, Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 and SZSBR v Minister for Immigration and Border Protection [2013] FCA 1208). Ground four lacks merit such as to support the extension of time.
Proposed ground five asserts bias on the part of the Tribunal at the hearing.
The applicants have not provided any evidence to support this claim. The test for bias is now well settled (see Minister for Immigration v Jia Legeng[2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”), Minister for Immigration and Citizenship v SZJSS & Ors[2010] HCA 48; (2010) 243 CLR 164 and SBBS v Minister for Immigration& Multicultural & Indigenous Affairs [2002] FCAFC 361). In effect, the assertion is that the Tribunal did not bring an open mind to the proceedings, or had prejudged the proceedings, or was not open to persuasion. Given that bias is an extremely serious charge to make, the law requires that it must be clearly made and distinctly proved (Jia Legeng at [69]).
The only evidence available of what occurred at the Tribunal hearing is the Tribunal’s references set out in its decision record. It is rare that bias can be made out on this basis alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668, SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 and Minister for Immigration and Citizenship vSZNPG [2010] FCAFC 51) and in the absence of any other evidence, the proposed ground cannot be made out. It lacks merit such as to support the extension of time.
Conclusion
None of the grounds of the proposed substantive application indicate jurisdictional error in the Tribunal’s decision. Coupled with the lack of an adequate explanation for the substantial delay in making an application to the Court pursuant to s.476 of the Act, there is no basis on which to extend time in the interests of the administration of justice pursuant to s.477(2) of the Act. Therefore it is appropriate to refuse the application for an extension of time. I will make the appropriate order.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 20 November 2017
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