AQS23 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 973
•1 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AQS23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 973
File number(s): SYG 427 of 2023 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 1 October 2024 Catchwords: MIGRATION – extension of time – 318 days out of time – significant delay – applicant purportedly lost job during COVID-19 pandemic – applicant claims unable to afford court filing fees due to financial difficulties – insufficient evidence – impecuniosity irrelevant – inadequate explanation for delay – application dismissed Legislation: Evidence Act 1995 (Cth) ss 59, 62
Migration Act 1958 (Cth) ss 5H, 36, 477
Cases cited: BRGAO v Minister for Immigration and Citizenship[2009] FCA 126
BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Jess v Scott (1986) 12 FCR 187
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158; FCA 1391
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9
Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
SZTRYvMinister for Immigration & 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) 96 ALJR 919
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
Division: Division 2 General Federal Law Number of paragraphs: 70 Place: Sydney Date of hearing: 11 September 2024 Applicant: In person Solicitor for the respondents: Ms B McNamara of Sparke Helmore Lawyers ORDERS
SYG 427 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AQS23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
1 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The application be dismissed.
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 PAPADOPOULOS
INTRODUCTION
Before the Court is an application filed on 10 March 2023, under s 477(2) of the Migration Act 1958 (Cth) (Act), seeking an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 March 2022.
The Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa).
The originating application was filed on 10 March 2023 (originating application), 318 days after the expiry of the 35-day filing period.
Having not been 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 for the following reasons.
BACKGROUND AND RELEVANT FACTS
The applicant is a citizen of the People’s Republic of China who last arrived in Australia on 3 June 2017 as the holder of a visitor visa.[1]
[1] Court Book (CB) 10.
The protection visa application
On 17 August 2017, the applicant applied for a protection visa. In support of that application, the applicant provided a two-page statement which contained the following claims:
(a)In March 2015, he contracted a local real estate developer to work on a residential building hydropower installation project. The total amount of the project was RMB300,000.
(b)The developer refused to pay ‘the rest of 200,000RMB’, which meant he could not pay the project team their salary so he borrowed money from a usurer and friends. He contacted the developer, but they refused to pay him because the houses he built could not be sold. The developer did not have the money to pay him.
He complained to the Industrial and Commercial Bureau and Complaints Office of Weihai City, and other relevant departments, about the developer’s failure to pay him. No one wanted to help.
(c)He was beaten by a group of gangsters employed by the developer, and was the victim of ‘vituperative remarks’ and personal attacks. His family was also threatened by the gangsters and the windows of his home were smashed.
(d)The local police did not help and told him that the developer was supported by government officers who had invested in the project.
(e)The usurer he borrowed money from wanted to possess his home illegally, and he feared that if he did not agree, they would ‘do something worse’ to him.[2]
[2] CB 24-25.
On 2 April 2020, the delegate refused to grant the applicant the visa (delegate’s decision).[3]
[3] CB 36-45.
The review application
On 2 April 2020, the applicant applied to the Tribunal for review of the delegate’s decision.[4]
[4] CB 46-47.
On 22 November 2021, the Tribunal invited the applicant to attend a hearing on 7 December 2021.[5] On 25 November 2021, the applicant confirmed that he would attend the hearing with the assistance of an interpreter in the Mandarin language.
[5] CB 53-55.
On 2 December 2021, the Tribunal notified the applicant that the hearing would not proceed and would be postponed until further notice.[6] On 2 March 2022, the Tribunal invited the applicant to attend a hearing on 18 March 2022.[7] On 14 March 2022, the applicant confirmed he would attend that hearing.[8]
[6] CB 65-66.
[7] CB 67-70.
[8] CB 71-77.
On 18 March 2022, the applicant attended a hearing before the Tribunal with the assistance of an interpreter in the Mandarin language.[9]
[9] CB 84 [3].
On 22 March 2022, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. On 23 March 2022, the Tribunal notified the applicant of its decision.[10]
[10] CB 81-92.
THE TRIBUNAL’S DECISION
The Tribunal’s key credibility concerns and findings were helpfully summarised by the Minister in his written submissions. The Tribunal recorded the following concerns with the applicant’s claims to owe money to money lenders and being owed money by a developer who sent gangsters to harm him:[11]
(a)There were inconsistencies between the applicant’s written claims to the Department and his oral evidence to the Tribunal. It noted that his written claims were that gangsters hired by the developer beat him. At hearing, however, he first claimed it was the money lenders who beat him, then towards the end of the hearing he told the Tribunal that both groups had beat him.[12] It found the applicant’s explanation that it was a ‘slip of the tongue’ to be implausible given the ‘big difference’ between the two groups.[13]
(b)The Tribunal acknowledged that although the applicant stated in his written claims that he had sought recourse from government agencies, he did not, however, mention this during the hearing. The Tribunal did not accept the applicant’s explanation for this omission, being that he expected the Tribunal to put forth his claims for protection.[14]
(c)The Tribunal further put to the applicant that in his written claims he stated he made complaints to the Industrial and Commercial Bureau and the City of Weihai but also did not mention these during the hearing.[15]
(d)The Tribunal recorded that the applicant said he ‘ran away’ because he owed money to the lenders, yet later in the hearing he claimed he had paid back the RMB300,000. It also found the applicant’s evidence to be ‘vague’ about when he borrowed the money, whereby he initially said he borrowed money at the beginning of the project but later claimed it was after the project started.[16]
(e)The Tribunal recorded that it put to the applicant information under s 424AA of the Act that there were ‘7 related cases to his’ before the Tribunal which involved those applicants living at the address in Australia where he resided, yet he had given evidence that he lived at that address with one friend. The Tribunal accepted that people in the house may have moved, however it considered that there was a large group of people living in the same house making protection visa applications.[17]
[11] CB 88 [27].
[12] CB 88 [28].
[13] CB 88 [23].
[14] CB 88 [29].
[15] CB 88 [24].
[16] CB 88 [30].
[17] CB 87 [22].
Given its concerns, the Tribunal did not find the applicant to be a credible witness. The Tribunal did not accept that the applicant borrowed money from money lenders, and that they beat him, and this forced him to flee to Australia. The Tribunal did accept, however, that the applicant had some dealings with a refrigerator company, that may or may not have paid him, but it did not accept that the developers had gangsters that beat him on the basis they owed him money.[18]
[18] CB 88 [32].
On the basis of its findings as to the applicant’s evidence, the Tribunal did not accept that, if he were to return to China, he would face a real chance of persecution from the money lenders, the developer or anyone associated with them.[19] As such, the Tribunal found that the applicant did not face a well-founded fear of persecution and therefore was not a refugee within the meaning of s 5H(1) of the Act.
[19] CB 89 [33].
The Tribunal also did not accept that there were grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to China, there was a real risk that the applicant would suffer significant harm from the money lenders, developers or anyone associated with them.[20]
[20] CB 89 [34].
Accordingly, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or (aa) of the Act.
RELEVANT LEGISLATION
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of the Tribunal’s decisions in respect of which this Court has jurisdiction and the basis upon which it may be extended. At the time of the Tribunal’s decision, it relevantly provided:
477 Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)
(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975— the date of the written decision under that subsection; or
(b) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5 — the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7 — the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca) in the case of a migration decision made by the Immigration Assessment Authority — the date of the written statement under subsection 473EA(1); or
(d) in any other case — the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
Section 5H of the Act provided:
5H Meaning of refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well‑founded fear of persecution, see section 5J.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non‑political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
Section 36 of the Act relevantly provided:
36 Protection visas—criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) 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; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings by way of the originating application filed on 10 March 2023 that was accompanied by an affidavit attached to which were copies of the Tribunal’s decision record dated 22 March 2022 and decision notification letter dated 23 March 2022. As the Tribunal’s decision was dated 22 March 2022, the applicant had until 26 April 2022 to bring this proceeding. Because the application was not filed until 10 March 2023, it was brought 318 days out time.
During a callover on 10 April 2024, a Registrar of this Court made various orders, including that the applicant file and serve written submissions and any additional evidence by 24 April 2024. In breach of these Orders, the applicant lodged his written submissions on 1 May 2024 (written submissions), and lodged a second affidavit on 21 August 2024 (second affidavit). Annexed and marked ‘Annexure 1’ to the second affidavit is a statutory declaration dated 18 August 2024 (statutory declaration) made by a Mr Xiaoxiao Yang who attests to being a friend and colleague of the applicant.
On 10 September 2024, the Minister filed supplementary written submissions (supplementary written submissions) in response to the applicant’s second affidavit.
At the hearing before me on 11 September 2024 (hearing), I asked the applicant if he wished to rely on his written submissions and second affidavit in relation to his delay in filing his judicial review application. The applicant responded ‘yes’, and in circumstances where the applicant is self-represented, the Minister did not oppose the applicant being granted leave to rely on the written submissions or second affidavit. The Minister did, however, object to the Court receiving the statutory declaration as evidence that the applicant could not afford the filing fee. My attention was drawn to the Minister’s supplementary written submissions on this point:
…the Minister objects to the Court receiving that as evidence of the proof of that asserted fact on the basis that Mr Yang has not provided any evidence to demonstrate that he has ‘first-hand’ or personal knowledge of this asserted fact: see ss 59 and 62 of the Evidence Act 1995 (Cth).
The Minister elucidated this argument by way of the following oral submission:
The applicant and Mr Yang have not identified the job at which they lost – the job at which they were employed and were lost, and the nature of their colleague. And while he says he’s a purported friend, it’s unclear the actual relationship and how he would have obtained any evidence to inform his position as to the applicant’s financial circumstances in the lead up to the due date to file his application.[21]
[21] Transcript of Hearing 11 September 2024 (T), T 7 at [44]-8[2].
By way of reply, the applicant reiterated that he did not know he was required to provide detailed evidence in that regard:
The part I disagree would be I didn’t know that I was supposed to provide, like, additional supporting documents. For example, with my friend, I didn’t know I should provide, like, a more detailed evidence for that purpose.[22]
[22] T 24 at [11]-[14].
I granted the applicant leave to rely on his written submissions and second affidavit. I also granted the Minister leave to rely on his supplementary submissions. Having considered the parties’ submissions, I accept the Minister’s argument in relation to the inadmissibility of Mr Yang’s declaration as evidence. The distinct absence of information relating to the nature and degree of Mr Yang’s relationship with the applicant provides no basis upon which to properly understand whether Mr Yang would be in a position to see, hear or otherwise perceive the applicant’s inability to pay the filing fee before 10 March 2023.
CONSIDERATION
Returning to the application, the consequence of it having been filed late is that the Court must consider the two limbs of s 477(2) of the Act.
Application in writing specifying reasons
The first limb contained in s 477(2)(a) of the Act is whether the application has been made to the Court in writing detailing why the extension should be granted.
In his originating application, the applicant specified the following ground as to why he says it is in the interests of the administration of justice for the Court to grant a time extension (without alteration):
There has been an epidemic since last two years. I lost job with financial difficulties to pay for the court fee. Even I was hard to survive. I really could not find a way to borrow money.
As stated earlier at [24], the applicant confirmed at hearing that his written submissions and second affidavit contained the grounds upon which he intended to rely in relation to addressing the delay in filing his judicial review application. Section 477(2)(a) of the Act is thus satisfied.
Necessary in the interests of the administration of justice
The second limb of s 477(2)(b) allows the Court to grant an extension of time for the filing of an application, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an Order.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 919 (Tu’uta Katoa) at [12], the High Court observed that the Court’s power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. The Act does not specify any criteria which must be satisfied to establish that it is in the interests of the administration of justice to grant an extension of time but the Court may 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 principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that case, Jagot and Halley JJ found that the Court has an obligation to ‘evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice’.[23] Further, their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(a)the extent of the delay and explanation for it;
(b)any prejudice to the respondent if an extension were granted;
(c)the impact on the applicant if the time was not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application.
[23] BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [40].
The extent of the delay and explanation for it
As stated above at [3] and [21], the applicant’s delay in filing his judicial review application amounts to 318 days out of time. The delay is lengthy. In other cases, the Court has described a delay of 74 days as ‘substantial’[24] and that delay of 54 days is likely to be fatal to an application for an extension of time where there is no reason for delay.[25]
[24] WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14].
[25] WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].
Typically, the longer the delay the more persuasive the explanation for that delay needs to be. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse extension of time in the case of long delay.[26]
[26] Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]; Jess v Scott (1986) 12 FCR 187 at [195].
In order to explain his delay, the applicant relied upon his second affidavit in which he stated that he could not pay the Court filing fee ‘because of the Covid-19 epidemic in 2022 until 2023, I had no job and income’. He also stated that the delay was also because he ‘could not find JP services, and interpreter’.
In his written submissions, the applicant further stated:
…I did apply the extension of my visa from The Home Affairs department in order to keep myself in the lawful status in Australia. Because I was preparing and willing to appeal in the future. Then I had to wait for the finish time of the Covid19, then I could be able to start to find some jobs for gathering some money for the appeal arrangement after the Covid19 period. Therefor [sic], I missed the best time frame for appeal.
While not evidence, I will treat the following statement from Mr Yang’s statutory declaration annexed to the second affidavit, as a submission:
We [being, Mr Yang and the applicant] lost our jobs during the epidemic from the March 2022 to 2023. My friend [the applicant] had no money to pay for the court filing fee, no money to pay for the other expense. He couldn’t survive during the epidemic period. What I wrote is the truth.
At hearing, the applicant stated that he had nothing further to add by way of explaining his delay in filing his judicial review application.
By way of written submissions, insofar as the applicant contended the delay could be explained because he did not have a job ‘in 2022 [un]til 2023’ due to the COVID-19 pandemic and therefore did not have sufficient funds to pay the Court filing fee, the Minster argued that this was not a satisfactory explanation because:
(a)it was a matter of common knowledge that the last lockdown in New South Wales occurred in late-2021, thereby undermining the applicant’s claim that pandemic-related restrictions prevented him from lodging the application in 2022.
(b)it is well-established that an inability to pay a Court filing fee is an inadequate explanation for delay.[27] The Minister further contended that the applicant’s alleged impecuniosity should not be accepted as a satisfactory explanation for his delay,[28] particularly in circumstances where the applicant gave no explanation for not having had applied for a fee waiver to ensure that his application was filed on time, and had not provided any evidence of his financial circumstances.
[27] SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]-[26].
[28] QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7].
At hearing, the Minister’s representative argued that the applicant’s delay in applying for judicial review of the Tribunal decision was ‘significant’ and reiterated the Minister ‘does not accept that the applicant has provided a sufficient explanation for the delay’. The Minister’s representative reiterated that that the applicant’s alleged inability to pay for the court filing fee should not be accepted as a satisfactory explanation for a delay of up to 10 months because the applicant:
(a)had not filed any evidence to demonstrate his financial circumstances during the relevant period immediately before the application had to be filed and until such time as it was filed, thereby making it difficult to understand whether or not he could have paid the filing fee;
(b)did not contact the Court to seek a fee waiver or to even understand his rights in relation to such; and
(c)did not file any evidence that demonstrates that he subsequently became employed and why that, all of a sudden, he was able to commence these proceedings and pay the filing fee in March 2023.[29]
[29] T 12 at [11]-[12].
The Minister’s representative further submitted that the applicant’s claim that his inability to find a Justice of the Peace (JP) or interpreter to assist him with his judicial review application could not be made out because:
(a)there was no evidence indicating what steps, if any, the applicant took to find JP services or an interpreter;
(b)to the extent that pandemic-related issues may have impeded the applicant in meeting with a JP, the Court’s ‘COVID‑19 Special Measures (PD-COVID) – FCFCOA Practice Direction’ (Practice Direction) which applied between 7 September 2021 and 4 November 2022, a copy of which the Minister’s representative tendered, allowed for the witnessing of documents by electronic means;
(c)the Court has services that would have enabled the applicant to access interpreter services by electronic means and, in circumstances where he did not seek any clarification from the Court and has not provided evidence that he attempted to contact the Court, that assertion should not be taken as evidence.
Having considered the parties’ submissions and the available evidence, I am of the view that for the following reasons, the applicant has not offered a satisfactory explanation for the delay in making this application.
First, I am unpersuaded by the applicant’s claim that he had no job or income throughout 2022 and until some point in 2023 and thereby lacked the resources to pay the filing fee. There is insufficient evidence before the Court to sustain that claim. I also find this claim to be implausible in circumstances where there is no evidence before the Court indicating efforts taken by the applicant to raise the funds required to pay the filing fee or engage with the Court in order to pay a reduced filing fee. Even if I am wrong in this regard, in circumstances where the applicant lacked sufficient funds to file his judicial review application at an earlier juncture, ample judicial authority indicates that impecuniosity does not constitute an acceptable explanation for delay.[30]
[30] BRGAO v Minister for Immigration and Citizenship[2009] FCA 126 at [16]-[17]; QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7]; SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]-[26].
Secondly, I agree with the Minister’s submissions outlined at [43] above in relation to the applicant’s claim that the delay could be explained by his inability to access the services of a JP and interpreter. Specifically in relation to the Practice Direction and the need for a JP to assist, I note the specific allowances made for the filing of documents witnessed by a qualified witness via electronic means, including by video, telephone and, if necessary, in person at a subsequent court event.[31] Further, there is a distinct absence of submissions and evidence detailing why the applicant thought a JP was required in the circumstances and what steps he took to try and engage with a JP before he filed his application. Similarly, the bare assertion that applicant required an interpreter is difficult to accept in the absence of evidence detailing his efforts to seek interpreter services and why he did not engage with the Court at an earlier juncture and avail himself of the interpreter services it could provide for the purpose of filing his judicial review application.
[31] Cls 5.3 – 5.4, Practice Direction.
In the absence of a satisfactory and acceptable explanation, this lengthy delay weighs strongly against the grant of an extension.
Any prejudice to the respondent if an extension were granted
By way of oral submissions, the applicant stated that if the Minister was to suffer prejudice if an extension was granted, this should be accepted by the Court because he too had suffered disadvantage when he became unemployed during the pandemic.
In oral submissions, the Minister properly submitted that they would not suffer any particular prejudice if the applicant was granted an Order allowing an extension of time, other than as to costs.
The mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing.[32]
[32] SZTRYvMinister for Immigration & Border Protection [2015] FCAFC 86 at [6].
I consider this factor neutral regarding the grant of an extension.
Public interest and impact on the applicant
There is a public interest in ensuring that administrative decisions are made lawfully. The merits of the substantive ground relied upon by the applicant, which are considered below, will be relevant in this regard. It has also been recognised that there is a public interest in the finality of administrative decisions.[33]
[33] Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [15]-[17]; [2000] HCA 67.
With regard to the impact upon the applicant, if the extension of time is refused then the Tribunal’s decision will stand, with all the consequences that follow for his protection visa application. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act, however an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth).
I accept that the impact on the applicant is significant in that they would be returned to their country of nationality which is a circumstance they claim to fear. I consider this to be a matter weighing in favour of the grant of an extension.
The merits of the substantive application
In considering whether a proposed appeal has merit, the Court will do so at a ‘reasonably impressionistic level’ by way of assessing whether the proposed grounds are ‘arguable’, ‘reasonably arguable’ or ‘sufficiently arguable’ to warrant the grant of extension of time.[34] Importantly, an applicant need only identify an ‘arguable case’ (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error that may warrant an extension being granted.[35]
[34] MZABP v Minister for Immigration & Border Protection [2015] FCA 1392 at [62]-[63], approved by the full Court of Appeal in MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478; FCAFC 110.
[35] MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158 (MZAIB).
The discretionary power to extend time is broad and there will be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. In Tu’uta Katoa at [18], the High Court provided the following examples of such circumstances (references omitted):
For example, if the delay is lengthy and unexplained, the applicant may be required to show that the 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.
In his application, the applicant relies on the following three grounds of review (reproduced without alteration):
1.I am a refugee from China and need to appeal.
2.My life will be in danger when I return China.
3.I disagree with the decision made by the Home Affairs department and AAT.
I note that the grounds are unparticularised. Although invited to elaborate on these grounds at hearing, the applicant did not provide any further matters for the Court’s consideration apart from some oral submissions in relation to ground 3 which I address below.
Mindful of the Court’s obligations towards unrepresented litigants,[36] I have scrutinised the application, the materials before the Tribunal and the Tribunal’s decision to identify any jurisdictional error. I have also read the applicant’s grounds as broadly as possible and remain alive to the possibility of jurisdictional error on the Tribunal’s part. Nevertheless, I am of the view that error has not been disclosed on the Tribunal’s part and, for the following reasons, am not persuaded that a reasonably arguable case of jurisdictional error arises out of the grounds of the substantive application.
[36] MZAIB at [59]-[77], [100] and [112]-[113].
In relation to grounds 1 and 2, I agree with the Minister that these grounds are merely statements of the applicant’s circumstances and do not disclose error on the Tribunal’s part. Accordingly, no reasonably arguable jurisdictional error by the Tribunal arises in relation to grounds 1 and 2.
In relation to ground 3, insofar as it pertains to the delegate’s decision or the first respondent’s Department, I agree with the Minister that this Court does not have jurisdiction to review a primary decision made by a delegate. This aspect of ground 3 is misconceived and must fail.
Nevertheless, I engaged with the applicant at hearing in order to seek further detail about his concern with the Tribunal’s decision. Asked whether he thought he had received a fair Tribunal hearing, the applicant responded: ‘It was fair’.[37] So as to allow him an opportunity to elucidate any issue or complaint about the Tribunal’s decision and the hearing itself, I further engaged with the applicant in the following terms:
…So, is there something wrong in this decision in the Court Book on page 83? Is there something wrong? Do you think it’s wrong, where for example, and I’m just giving you an example – it doesn’t mean this has to be there, but maybe the Member misunderstood what you said during the hearing.[38]
The applicant responded: ‘No’.[39] Asked if there was anything else he wished to tell me about the Tribunal process which he felt had been unfair or wrong, the applicant again responded: ‘No’.[40]
[37] T 18 at [15].
[38] T 18 at [6]-[20].
[39] T 18 at [21].
[40] T 18 at [35].
In his written and oral submissions, the Minister argued that the applicant fails to raise an arguable case and ultimately seeks an impermissible merits review of the Tribunal’s decision. By way of oral submission, the Minister drew my attention to the Tribunal’s Hearing Record and observed that the applicant had appeared before a Tribunal Member for around two hours,[41] and engaged in a ‘substantive conversation’ with that Member about the decision under review. The Minister then posited the following as the basis upon which ground 3 could not be made out:
The applicant has said this morning that he does not have any issue or disagreement with the Tribunal decision, but insofar as proposed ground 3 can be read to be a disagreement, he has not identified in his ground or this morning what he disagrees with, and the Minister submits that, at its highest, the applicant seeks for the Court to engage in merits review or a review of the facts, which it’s not permitted to do, and your Honour has already highlighted that to the applicant.[42]
[41] CB 78-80.
[42] T 19 at [28]-[34].
In the absence of particulars and submissions detailing the applicant’s complaint with the Tribunal’s decision, the applicant has not provided a basis upon which to proceed to identify jurisdictional error. That said, my review of the materials before the Court does not reveal any indication of a reasonably arguable case of error on the Tribunal’s part.
Credibility findings were a key feature of the Tribunal’s decision. The Tribunal took a relatively nuanced approach towards its credibility assessment, finding that it did accept some of the applicant’s evidence but rejected other claims as a result of inconsistencies and omissions. In my view, the Tribunal’s adverse credibility findings in relation to the applicant were open to it to make on the available evidence. In the circumstances of this case, the inconsistencies and omissions of concern to the Tribunal were not minor as they went to the heart of the applicant’s claims. Further, its adverse credibility findings were based on matters logically probative of credibility.[43] On this basis, I am unable to identify a reasonably arguable case of jurisdictional error arising in relation to ground 3.
[43] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146.
For these reasons, the merits of the substantive judicial review application are lacking and this weighs heavily against allowing an extension of time.
CONCLUSION
As the application in this case is 318 days outside the statutory timeframe, the Court may only grant an extension of time within which the application was to be made if it is satisfied such extension is in the interests of the administration of justice.
Taking into account all of the considerations above, particularly the absence of a satisfactory explanation for the lengthy delay and lack of any reasonably arguable case of jurisdictional error on the part of the Tribunal, I am not satisfied it is in the interests of the administration of justice that time be extended in this matter.
Therefore, the application is dismissed.
I will hear the parties in relation to costs.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 1 October 2024
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