ASP19 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1166
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASP19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1166
File number(s): SYG 421 of 2019 Judgment of: JUDGE SKAROS Date of judgment: 7 November 2024 Catchwords: MIGRATION – protection visa - application for extension of time to seek judicial review of Administrative Appeals Tribunal (Tribunal) decision – minimal delay - no prejudice to the Minister – limited arguable case of jurisdictional error - application for extension of time refused Legislation: Migration Act 1958 (Cth) ss 4(a),411, 425,425A(1) 425A(2), 425A(3), 425A(4), 426A, 441A(5)(b), 41A(5)(d), 477(1), 477(2), 476(2)(a)
Migration Regulations 1994 (Cth), s 36(2)(a), s 36(2)(aa), reg 4.35
Cases cited: AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30; [2016] FCAFC 68
APN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2342
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176
1 Martinez v Minister for Immigration & Citizenship & Anor (2009) 177 FCR 337; [2009] FCA 528
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
Singh v Minister for Immigration, Citizenship, Multicultural Affairs[2023] FCA 571
Tu’uta Katoa v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 30 October 2024 Place: Parramatta Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms Ren, HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 421 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASP19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to the ‘Minister for Immigration and Multicultural Affairs’.
2.The application for extension of time filed on 25 February 2019 pursuant to s 477(2) of the Migration Act 1958 (Cth) is 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 SKAROS
INTRODUCTION
By application, filed on 25 February 2019, the applicant seeks an order under s 477(2) of the Migration Act 1958 (Cth) (the Act) to extend time for him to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 4 January 2019. The Tribunal affirmed the decision of a delegate (the delegate) of the First Respondent (the Minister) refusing to grant the applicant a Protection (class XA, subclass 866) visa (the visa).
BACKGROUND
The applicant is a citizen of Fiji. He arrived in Australia on 24 April 2015 as the holder of a visitor visa.
On 17 July 2015, the applicant applied for the visa. On 22 December 2015, the delegate refused to grant the visa as the Tribunal was not satisfied that the applicant was a refugee, or a person owed complementary protection, in respect of whom Australia has protection obligations.
On 5 January 2016, the applicant applied to the Tribunal for a review of the delegate's decision.
On 20 April 2018, the applicant appeared before the Tribunal to give evidence and present arguments.
On 4 January 2019, the Tribunal affirmed the delegate's decision to refuse the visa.
THE TRIBUNAL’S DECISION
The Tribunal provided a summary of the applicant’s visa application history before setting out the legislative criteria for a protection visa. The Tribunal outlined the refugee criterion set out in s 36(2)(a) of the Migration Regulations 1994 (the Regulations), the complementary criterion in s 36(2)(aa) of the Regulations, and the mandatory considerations contained in Ministerial Direction No. 56 made under s 499 of the Act. The Tribunal also noted its consideration of the policy guidelines in the PAM3 Refugee and humanitarian - Complementary Protection Guidelines, PAM3 Refugee and humanitarian - Refugee Law Guidelines, and the Department of Foreign Affairs and Trade’s (DFAT) report on Fiji published on 27 September 2017.
The Tribunal summarised the evidence provided by the applicant and summarised the applicant’s claims for protection in [18] of its reasons as follows:
18. In relation to why he was seeking protection, the applicant claimed in his protection visa application that if he returned to Fiji he would be harmed by the military and government because his name appears in the [Named Report], and he was threatened by a military officer in December 2014. In his review application the applicant also claimed he would be harmed due to his association with [Mr X] who actively criticises the current Fijian government and because he has applied for protection. At the hearing the applicant further claimed he would be harmed due to the anti-government Facebook posts he has made since he arrived in Australia.
The Tribunal accepted that the applicant was a national of Fiji, and that Fiji was the country of reference for the purposes of assessing his claims.
The Tribunal found, inter alia, that:
(a)the applicant had not been subjected to serious harm because he was named in the Named Report;
(b)the Fijian authorities were neither aware, nor had presumed, that the applicant had applied for a protection visa in Australia. As such, there was not a real chance he would face serious or significant harm on this basis;
(c)there were credibility concerns in relation to the applicant’s evidence of the December 2014 gathering and it was not accepted that the applicant had argued with a military officer about issues critical of the government or that he had been warned to stop raising his opinion or the officer would ‘come down’ on the applicant.
(d)that the applicant had not expressed his own opinion prior to December 2014 gathering, which resulted in any adverse consequences for him ‘and was not imputed with an anti-government opinion for being Methodist’.
(e)it was not credible that the applicant would leave his job, home country, wife and three children to come to Australia on a visitor visa, having never faced adverse consequences in the past for his actual or perceived opinion, aside from a singular warning.
(f)neither Mr X nor the applicant were a high-profile public figure, leader, senior member of an opposition party or separatist movement, or would attract adverse interest of the Fijian government or related bodies due to their political opinions; and
(g)Pursuant to s 5J (6) of the Act, the Facebook posts made by the applicant after the protection visa was lodged were to be disregarded when considering whether the applicant had a well-founded fear of persecution under s 5J (1a).
(h)the applicant was not a refugee under s 5H (1) and was not a person in respect of whom Australia had protection obligations under s 36(2)(a).
(i)There were no substantial grounds for believing that the applicant faced a real risk that he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.
APPLICATION TO THE COURT
The application which commenced proceedings in this Court contained three grounds pertaining to the extension of time and 15 grounds in respect of the proposed application for judicial review.
The applicant filed an affidavit in support of the application, sworn on 25 February 2019, which annexed a copy of the Tribunal’s decision record and set out the 15 proposed grounds of judicial review.
The applicant filed written submissions on 5 April 2024. The Minister filed written submissions on 16 April 2024.
The parties appeared before the Court at the hearing on 30 October 2024. The applicant appeared in person. Ms Ren, a solicitor advocate, appeared on behalf of the Minister.
The Court Book was tendered by the Minister at the hearing and marked exhibit CB.
Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and the matters that would normally be considered by the Court, which it noted were not exhaustive, when determining whether time should be extended to enable him to pursue his substantive application for judicial review.
Consideration of the extension of time application
The applicant did not commence proceedings in this Court within the 35-day period prescribed by s 477(1) of the Act.
Under s 477(2) of the Act, the Court has the power to extend the 35-day limit if:
(a) the applicant has requested the extension of time in writing and provided reasons for why it is necessary in the interest of the administration of justice for time to be extended; and
(b) the Court is satisfied that it is necessary in the interests of the administration of justice for time to be extended.
The applicant has sought an order (in writing) that the time for making the application be extended under s 477(2) of the Act. He provided the following grounds (without alternation) in support of his application for extension of time:
1.I did not have time to prepare an application.
2.I always work away to other states.
3.I need to prepare myself financially.
At the hearing, the Court explained to the applicant that the circumstances, which it noted were non-exhaustive, when considering whether to grant an extension of time, generally included: the length of the delay; the explanation for the delay; any prejudice to the Minister; and whether the substantive grounds of the judicial review application have any merit: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 and confirmed in Tu’uta Katoa v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at [13].
In considering whether the grounds of the judicial review application have any merit, the Court need only do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110. As explained to the applicant at the hearing, the Court need only be satisfied that grounds of his judicial review application have some prospect of success or raise a sufficiently arguable ground of jurisdictional error on the part of the Tribunal.
The applicant was invited to make oral submissions in relation to each of the circumstances and the Court has considered those submissions.
Length of the delay
The applicant commenced proceedings in this Court on 25 February 2019, being 17 days outside the prescribed period of 35 days from the date of the Tribunal’s decision. The Court does not consider a delay of 17 days to be a particularly lengthy period. This consideration weighs slightly in favour of granting the extension of time.
Explanation for the delay
The applicant’s explanation for the delay included a lack of time to prepare the application, his employment commitments, which required interstate travel, and financial reasons. In his written and oral submissions, the applicant claimed to have engaged a migration agency to assist him with filing the documents and submissions, however, the agency delayed lodging the documents, after which they informed him that they would not be taking his case any further.
The Minister submitted that the applicant has not provided any evidence to support his claim that the delay was caused by the agency. The applicant said he has tried to obtain proof of payment from the agency, but they would not provide it to him.
It appears that the reasons for the delay were due to a combination of the applicant’s personal and employment circumstances, and his reliance on advice from a migration agency who appear to have assisted him with the lodgement of the judicial review application. It was not entirely clear when the applicant approached the agency to assist him, but the Court is prepared to accept that the delay was due, in part, to the applicant’s reliance on an agency whom he believed would be able to properly assist him with the application. This consideration weighs slightly in favour of granting the extension of time.
Prejudice to the Minister
The Minister conceded that there would be minimal prejudice by the Court granting an extension of time. The Court is also mindful that the mere absence of prejudice is not a sufficient basis to grant an extension of time: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 349 per Wilcox J. This consideration weighs slightly in favour of granting the extension of time.
Merits of the proposed application
In determining whether an extension of time should be granted, the Court has considered, at a reasonably impressionistic level, whether the proposed grounds in the application for judicial review have any reasonable prospect of success.
The applicant’s 15 proposed grounds are a mixture of opinions, submissions and unparticularised generic complaints about the delegate’s and the Tribunal’s decisions. The Minister has aptly grouped the proposed grounds into four categories. For ease of consideration, the Court adopts the Minister’s categorisation of the applicant’s proposed grounds of judicial review.
Denial of procedural fairness: grounds two, three, four, seven and nine
By grounds two and nine the applicant asserts that the Department and Tribunal had failed to accord him procedural fairness.
By grounds three and four the applicant asserts that the Department and the Tribunal failed to properly send him documents.
By ground seven the applicant asserts that the Tribunal had failed to consider procedural errors made by the Department.
At the hearing before the Court, the applicant was unable to provide any meaningful details about how he was denied procedural fairness, stating only that it was the submission made by the agency that assisted him with the application.
The Court has nevertheless considered whether these grounds have any prospect of success.
Firstly, the Court has no jurisdiction to review the decision made by Department as it is a primary decision: ss 476(2)(a) and (4)(a) of the Act. Further, as submitted by the Minister, any procedural (or other) errors made by the Department are irrelevant to the Tribunal's exercise of jurisdiction, as the Tribunal's review has the effect of curing any defects in the visa application process: Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337 at [20] per Rares J.
As to the applicant’s complaint that he was not afforded procedural fairness, this is not made out. In considering the obligations of the Tribunal, as set out in Division 4 Part 7 of the Act, the Court is satisfied on the evidence before it that the applicant was properly invited to a hearing, as required by s 425 of the Act, at which he was given an opportunity to given evidence and present arguments in respect of his claims for protection (CB 276-277). The Tribunal’s decision record indicates that it put to the applicant concerns it had with his claims and evidence, and the applicant was given an opportunity to respond to those concerns. There is no evidence before the Court which suggests that the hearing was not conducted in a fair manner or that the applicant did not get a real and meaningful opportunity to present his case.
As to the applicant’s complaint regarding the Tribunal’s failure to properly send him documents, the Court accepts the Minister’s submissions that the hearing invitation, being the relevant document in the proceedings before the Tribunal:
(a)gave the applicant notice of the day on which, and the time and place at which, he was scheduled to appear: s 425A(1) of the Act;
(b)was sent to the applicant's last email address provided to the Tribunal: ss 425A(2) and 441A(5)(b) and (d) of the Act;
(c)gave in excess of 14 days’ notice: s 425A(3) of the Act and reg 4.35 of the Regulations; and
(d)contained a statement to the effect of s 426A of the Act (CB 277): s 425A(4) of the Act.
The evidence before the Court does not disclose that the applicant had been denied procedural fairness by the Tribunal. For these reasons, the Court is not satisfied that grounds two, three, four, seven and nine, on a reasonably impressionistic assessment, have any reasonable prospect of success.
Denial of the right to representation: grounds five, six and eight
By grounds five, six, and eight, the applicant complains that he has been denied the right to representation which, due to his lack of knowledge about the Tribunal’s process, hindered his ability to properly present his case.
The Minister relied on APN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2342 at [58] to contend that there was no right to legal representation for reviews conducted under Part 7 of the Act. This is the correct state of the law in respect of the right to legal representation in migration proceedings: see Singh v Minister for Immigration, Citizenship, Multicultural Affairs[2023] FCA 571 (citing AMF15 v Minister for Immigration and Border Protection241 FCR 30 at [51]- [52] (Flick, Griffiths and Perry JJ). The Court notes, however, that the applicant’s complaints were not directed to the right to legal representation but to representation generally, which, before the Tribunal in a migration matter, could have also been provided by a registered migration agent.
The Minister submitted that the applicant had ample opportunity to obtain representation, that he had informed the Tribunal that he would be representing himself (CB 248) and there was also nothing to suggest that the Tribunal denied the applicant the opportunity to obtain representation.
At the hearing before the Court, the applicant said he was assisted by a migration agent in the proceedings before the Tribunal. The Court observed that the Tribunal’s records, at least those which formed part of the Court Book, do not indicate there was an agent on the record. The applicant said the agent assisted him with lodging the application and providing documents to the Tribunal, but she told him that she would not be attending the hearing.
It appears that the applicant did receive some assistance from a migration agent in the proceedings before the Tribunal. The agent’s failure to attend the hearing and assist the applicant cannot be attributed to the Tribunal as some failure on its part to deny him procedural fairness.
The Court is not satisfied that grounds five, six and eight, considered at a reasonably impressionistic level, have any reasonable prospect of success.
Bias: Grounds ten and twelve
By Grounds ten and twelve, the applicant complains the Tribunal took a personally subjective view of his actual circumstances. The Minster interpreted this to be an allegation of either apprehended or actual bias. The Court agrees with this categorisation of the allegations.
At the hearing before the Court, the applicant was unable to provide any details about which aspects of his claims or evidence he believed the Tribunal took a subjective view of.
An allegation of bias must be distinctly raised and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) at [69].
To establish actual bias, the applicant is required to demonstrate that the Tribunal was so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever arguments may be presented: Jia Legeng at [72]. There is no evidence before the Court, nor has the applicant presented any evidence, which suggests that the Tribunal’s mind was incapable of persuasion.
Apprehended bias will be established if it can be demonstrated that a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the Tribunal might not have brought an impartial mind when conducting the review. It is an objective test of possibility and not probability: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[30].
The Court has been unable to identify, on the face of the decision record, anything which might lead a fair-minded lay observer to infer the Tribunal had a predisposed view about the application’s circumstances (and his claims for protection) such that its mind was not open to persuasion.
The decision record discloses that the Tribunal considered the correct law and applied it to the applicant's circumstances. The Court accepts, as submitted by the Minister, that it was open to the Tribunal to prefer country information sourced from DFAT and the United States Department of State over the country information provided by the applicant. The country information to which the Tribunal has regard and the weight it attributes to that information is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13].
The evidence before the Court does not disclose any actual or apprehended bias on the part of the Tribunal. For these reasons, the Court is not satisfied that grounds ten and twelve, on a reasonably impressionistic assessment, have any prospect of success.
Other proposed grounds
Ground one is a statement that ASP19 is the applicant in the proceedings before the Court.
Ground eleven alleges that the Tribunal treated the applicant no differently than applicants who lodged invalid applications. The evidence before the Court indicates that the applicant lodged a valid application for merits review, that the Tribunal had jurisdiction under s 411 of the Act to review the decision and conducted a review in accordance with the relevant legislative provisions.
Grounds thirteen, fourteen and fifteen refer to an application for a Temporary Business Class Entry (class UC) and a Business Nomination Approval. The applicant informed the Court that he had not made any application for a temporary business visa. These grounds are therefore irrelevant to the present proceedings.
None of the above proposed grounds, when considered at an impressionistic level, have any prospect of success.
The Applicant’s submissions to the Court
In submissions to the Court, the applicant said at the time he made his protection visa application, the former government of Fiji (against whom he made protection claims) was in power. He said the former government is no longer in power, but that he still wishes to remain Australia to work and support his family in Fiji.
The Court has no power to consider the applicant’s current circumstances or to grant him a visa. As explained to the applicant at the hearing, the role of the Court in the proceeding is to assess whether it would be in the interest of administrative justice to extend time for the matter to be heard on a final basis.
CONCLUSION
The Court has concluded that the period of the delay, that the applicant’s explanation for the delay and any prejudice to the Minister, individually, weight slightly in favour of granting the extension of time. Against this, however, the Court considers that the proposed grounds raised in the judicial review application, assessed at an impressionistic level, have no reasonable prospect of success. This factor weighs heavily against granting the extension of time.
As the Court is not satisfied that any of the proposed grounds of review have merit, the Court is accordingly not satisfied that it is the interest of administrative justice to grant the applicant an extension of time to seek judicial review of the Tribunal’s decision.
For these reasons, the application for an extension of time is dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 7 November 2024
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