Aqa18 v Minister for Home Affairs
[2018] FCCA 3059
•19 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AQA18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3059 |
| Catchwords: MIGRATION– Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal that it had no jurisdiction to review a decision of a Delegate of the Minister for Immigration not to grant to him a Protection visa because the application to it was made six months late – applicant needed a 53 day extension of time under s.477(2) of the Migration Act 1958 (Cth) to make his application to this Court – no reasonable explanation for delay and no reasonable prospects of success for proposed substantive ground – application for extension refused. |
| Legislation: Migration Act 1958 (Cth), ss.66, 347, 412, 476, 477, 494C Evidence Act 1995 (Cth), s.58 |
| Cases cited: Australian Competition and ConsumerCommission v AIR New Zealand (2012) 207 FCR 448 Bechara v Bates [2018] FCA 460 |
| Applicant: | AQA18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 349 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 19 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms A. Zinn |
| Solicitors for the Respondents: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application for an extension of time filed in this Court on 12 February 2018 is dismissed.
The Applicant is ordered to pay the First Respondent’s costs of the proceeding in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 349 of 2018
| AQA18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant is a male citizen of Malaysia of Chinese ethnicity aged 29 years, having been born on 12 July 1989.
By Application filed in this Court on 12 February 2018, he seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 16 November 2017 which found that it had no jurisdiction to review the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 23 March 2017 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
The Applicant also applies for an extension of time of some 53 days under s.477(2) of the Migration Act 1958 (Cth) (the Act) outside the time limit prescribed by s.477(1) for him to make his substantive application for judicial review in this Court under s.476(1).
Background
The Applicant arrived in Australia on 19 September 2015 on an Electronic Travel Authority (Class UD) (Subclass 601) visa and applied for the Protection visa on 10 January 2017. In his Protection visa application form he agreed to the Department of the Minister communicating with him by email to his nominated email address (the nominated email address).
Relevant Statutory Criteria for the Grant of a Protection Visa
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Applicant’s Claims for Protection
The Applicant’s claims for protection may be summarised as follows:
a)a gang of persons of Malay ethnicity (the Racialists) came to his house, asked him to leave and threatened him with violence if he refused to depart Malaysia due to his Chinese ethnicity;
b)he fears returning and facing the gang in Malaysia once more as he believes the Racialists will kill him;
c)when the Racialists came to his home they beat him with knives, guns and slapped him;
d)he informed the Malaysian authorities, but they did not provide any protection to him; and
e)he has moved from place to place but the Racialists still managed to somehow find him.
Decision of Delegate
The Delegate found that the Applicant has provided minimal detail and no evidence to support his claims that if he returned to Malaysia he would be physically harmed by ethnic Malays because of his race and that independent country information did not support a finding that the Malaysian authorities would not provide an adequate level of protection for the behaviour feared by the Applicant.
Accordingly, the Delegate was not satisfied that the Applicant was a refugee or that he would suffer significant harm if he returned to Malaysia for the purposes of the complementary protection criterion and he refused to grant a Protection visa to the Applicant.
I find on the evidence before me that the Decision Record of the Delegate and the notification of refusal letter each dated 23 March 2017 were sent on that day by email to the nominated email address.
That evidence is in the Court Book where the notification of refusal letter and Decision Record are reproduced and I find that the notification of refusal letter complies with s.66 of the Act and is dated 23 March 2017 I find that the notification of refusal letter advised the Applicant that any application for merits review of the refusal decision had to be given to the Tribunal within the prescribed timeframe, which commenced on the day on which he was taken to have been notified of this decision and ended at the end of 28 days thereafter.
Further evidence establishing that the notification of refusal letter and Decision Record were forwarded by email on 23 March 2017 is to be found in the affidavit of Katherine Louise Evans, affirmed on 4 September 2018, which attaches business records of the Department of the Minister which I infer and consider to be authentic (see: s.58 of the Evidence Act 1995 (Cth) and Australian Competition and ConsumerCommission v AIR New Zealand (2012) 207 FCR 448 per Perram J and DZE17 v Minister for Immigration and Border Protection [2018] FCA 1521 per Allsop CJ (DZE17)).
Tribunal Decision
On 19 October 2017, the Applicant lodged an application for review of the Delegate’s decision with the Tribunal.
By letter dated 31 October 2017, the Tribunal wrote to the Applicant and pointed out that it appeared that the review application lodged by him was not valid as it had not been lodged with the Tribunal within 28 days commencing on the day on which the Applicant was notified of the decision of the Delegate, which in his case was the date of the Delegate’s decision, namely 23 March 2017. This meant that the last day for lodging his review application was 19 April 2017, but it had not been lodged until 19 October 2017. The Applicant was also in this letter invited to respond to this preliminary view of the Department of the Minister but on the evidence before me it does not appear that he did so respond.
By its Decision Record of 16 November 2017, the Tribunal found that it had no jurisdiction to review the Delegate’s decision. It found that the Applicant had to lodge his application for review with the Tribunal within 28 days, commencing on the day that the Applicant was notified of the decision of the Delegate, which the Tribunal was satisfied was by email dated 23 March 2017.
The Tribunal was satisfied that the Applicant had been notified of the decision in accordance with the statutory requirements. The Tribunal further found that under s.494C of the Act the Applicant was taken to have been notified of the decision on 23 March 2017 and that meant that he had until 19 April 2017 to apply for a review, but had not done so until 19 October 2017 and the Tribunal had no jurisdiction.
Extension of Time
The Grounds for extension of time are as follows:
1.I did not know when I should lodge application to the court.
2.I needed to save money to pay court fees.
3.There exists unfairness in my case.
The Minister opposes the grant of any extension of time, on the basis that there are insufficient merits to justify such an extension. Unfortunately for the Applicant he has not provided or tendered any evidence in support of his Grounds for an extension.
It was the Applicant’s obligation to know when he was required to file his judicial review application in this Court. He needed to make proper enquiries and take reasonable action to make an application to the Court. He has provided no evidence that he had insufficient moneys to pay Court fees and he has not suggested or dealt with the issue of whether he had taken any steps to seek a waiver of that fee, which was a course open to him.
There is simply no credible or probative evidence in support of his Grounds for extension and, on the face of them, they do not provide a reasonable or adequate explanation for him not complying with the legislation which required the Application to this Court to be made within 35 days of the decision of the Tribunal. In considering whether or not it is in the interests of the administration of justice to grant an extension of time, the Courts have developed non-exhaustive guidelines as to the factors which are to be taken into account.
Those factors include:
a)whether there has been a reasonable and adequate explanation for the applicant’s delay and the extent of the delay;
b)whether there is any prejudice to the Minister; and
c)whether the applicant’s substantive case for judicial review is reasonably arguable or has reasonable prospects of success.
In relation to the assessment of whether or not the Applicant’s substantive case is reasonably arguable or has reasonable prospects of success, I ought not to travel beyond an examination of the proposed substantive Ground beyond “a reasonably impressionistic level”.
The relevant principles applicable to an application for an extension of time have been conveniently stated recently by Perry J in Bechara v Bates [2018] FCA 460 at [17] – [18] in the following terms:
[17]The principles relevant to the exercise of discretion to grant an extension of time within which to appeal are well established: see e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19] (Perry J); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J). These may be summarised as follows.
(1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.
(2) The length of the delay is a relevant factor.
(3) The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time.
(4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.
(5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account.
[18]As to the last of these matters, I recently explained in Jamal v Secretary, Department of Social Services [2017] FCA 916 that:
12. ... it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection[2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer[1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).
(emphasis removed)
Proposed Substantive Ground
The proposed substantive Ground is as follows:
1.It is not clearly indicated that in the refusal notification from the Delegate which day is the commencing date for 28 days of review period.
Tribunal did not consider unfairness in my case.
Thus, there exists jurisdictional error.
This proposed Ground would fail to establish jurisdictional error. The notification of refusal letter dated 23 March 2017 did clearly indicate that “An application for merits review of this refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days. Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date”.
Otherwise, I will interpret this Ground as contending that the decision by the Tribunal that it did not have jurisdiction was legally wrong. However, in my view, the decision of the Tribunal was clearly correct. The evidence which is before me establishes that the Decision Record of the Delegate and the notification of refusal letter both dated 23 March 2017 were sent by email to the Applicant’s email address given to the Department in his Protection visa application.
That meant that under the statutory legislation, the application for review had to be lodged by the Applicant with the Tribunal by, as was found by the Tribunal, 19 April 2017, but it was in fact lodged some six months later.
The relevant statutory regime has recently been analysed and considered by Allsop CJ in DZE17 and I do not consider it necessary to set out that regime again here. In my view, the Tribunal was correct to find that the application for a review was lodged outside the statutory time limit and was therefore invalid and, accordingly, the Tribunal had no jurisdiction to hear the review application on its merits.
Unfortunately for the Applicant, there is no provision in the Act that allows the Tribunal, or a Court, to override or extend the time limit prescribed by s.412(1)(b) of the Act and reg.4.31(2) of the Migration Regulations 1994 (Cth) or any jurisdiction to entertain an application that was not made within time. As Charlesworth J stated in Calimoso v Minister for Immigration & Border Protection [2016] FCA 1335 of s.347(1)(b)(ii) (the analogue provision to s.412(1)(b)) at [29]:
[29]The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be made.
Accordingly, the proposed substantive Ground must necessarily fail and it would therefore be futile to grant any extension of time and, in the circumstances, I therefore consider that it is not in the interests of the administration of justice to grant any extension of time.
Conclusion
Accordingly, the Application for an extension of time filed in this Court on 12 February 2018 is to be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 26 November 2018
0
11
4