Atl20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1307
•11 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ATL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1307
File number(s): SYG 370 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 11 June 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection visa – application for an extension of time – whether the Tribunal decision was affected by jurisdictional error – whether the Tribunal findings were incorrect – whether the decision maker’s decision was based on personal opinion and not on any solid evidence on the matter – whether jurisdictional error is made out – no jurisdictional error is made out – the application for an extension of time is dismissed. Legislation: Migration Act 1958 (Cth) s 36(2)(a), 36(2)(aa), 424(1), 477(1) Cases cited: BQQ15 v Minister for Home Affairs [2019] FCAFC 218
Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Re Commonwealth of Australia : ex parte Marks [2000] HCA 67
SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Number of paragraphs: 34 Date of last submission/s: 9 June 2021 Date of hearing: 9 June 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Stone appeared on behalf of the First Respondent. ORDERS
SYG 370 of 2020 BETWEEN: ATL20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
11 JUNE 2021
THE COURT ORDERS THAT:
1.The application for an extension of time is refused.
2.The application is dismissed.
3.The Applicant to pay the First Respondents costs fixed in the amount of $3737.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Malaysia. The applicant arrived in Australia on 7 March 2017 on an Electronic Travel Authority (Class UD) (Subclass 601) visa.
On 8 June 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa. On 28 August 2017, a delegate of the Minister for Immigration (“the delegate”) refused the applicant his protection visa.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 23 January 2018, the Tribunal affirmed the decision not to grant the applicant a protection visa.
On 19 February 2020, the applicant lodged an Initiating Application in this Court, seeking first, an extension of time to lodge the application, and second, judicial review of the Tribunal’s decision. The Court notes that the application for judicial review is some 723 days outside the specified 35 day time limit as prescribed in the legislation.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal’s decision is relatively short. At paragraph 2 and onwards of its decision, the Tribunal noted the claim that the applicant came to Australia from Malaysia following his conversion from the Sunni to Shia faith as he and his family will be “injured, censored as we declare we are Shia”. The applicant stated that he could not find work in Malaysia because “everyone treated him differently because of his faith”.
The Tribunal questioned the applicant as regards to some basic tenants of the Shia faith which, the Tribunal noted, he had difficulty answering. The Tribunal put to the applicant that he did not appear to know enough about the Shia religion to convince the Tribunal that he had converted to that faith.
At paragraphs 21 onwards of its decision, the Tribunal considered the applicant’s claims and evidence. The Tribunal stated that it did not find the applicant’s evidence at hearing about his alleged conversion from the Sunni to Shia faith convincing. This was based on the applicant’s inability to answer a number of basic questions that were the central tenants of the Shia faith. Further, the applicant did not provide a plausible explanation as to why he allegedly converted from the Sunni to the Shia faith.
The Tribunal found that the applicant was not a genuine convert and not a credible witness. Accordingly, the Tribunal did not accept that the applicant was made jobless or will be jobless or that he would be persecuted by authorities as a result of his conversion. The Tribunal did not accept that the applicant was the subject of threats at work or otherwise that his family were, or will, be targeted if they were returned to Malaysia.
For these reasons the Tribunal was not satisfied that the applicant met the criteria for protection under the refugee criteria pursuant to s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) or the complimentary protection criteria in s 36(2)(aa) of the Act, and affirmed the decision under review.
GROUNDS OF JUDICIAL REVIEW
In relation to the applicant’s request for an extension of time to lodge his application, in an Affidavit affirmed on 18 February 2020 the applicant states as follows:
“I was late in filing this case because I did not know about the process after my review to the Administrative Appeals Tribunal.”
“I was only able to file my case to the Federal Circuit Court after a friend advised me how to file my case to the Federal Circuit Court.”
The grounds of judicial review are as follows verbatim:
Ground One
The decision made to refuse my Protection Visa has a jurisdictional error.
Ground Two
The decision maker findings about Shia are only based on articles from the media and not from the correct religious sources and therefor are incorrect.
Ground Three
The decision maker's decision on the Complementary Protection Criterion is only based on the decision maker's personal opinion and not on any solid evidence on the matter.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that a copy of the first respondent’s written submissions had been provided to him and that he understood them. The applicant was also provided with a pen and paper so that he could take notes during the course of the hearing should he wish to.
At the commencement of the hearing, the Court explained that it was undertaking judicial review not merits review and the difference between the two types of review. The Court also explained the process by which the Court hearing would be undertaken. The first task for the Court to undertake was to consider the extension of time issue.
Despite Court Orders, no written submissions or other material, other than that indicated above, was filed in support of the application. The applicant told the Court that he was unable to afford a lawyer and was unaware of the time limit for filing an application for judicial review. The applicant stated that he only became aware of the avenue of judicial review after a friend told him about it. The Court pointed out to the applicant that in correspondence sent to him by the Tribunal, the 35 day time limit for judicial review applications was clearly indicated: see CB 88.
The applicant did not have any matters he wished to raise with the Court as regards to the grounds of judicial review.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything further. The applicant answered that it would be very difficult for him and his family to return to Malaysia and that “there is no proper law, only street law”.
RESPONDENT’S SUBMISSIONS
In relation the extension of time application, the first respondent notes that the application was filed 723 days outside the 35 time day time limit set by s 477(1) of the Act. The matters that the Court would normally have regard to in determining an extension of time application includes: the extent of the delay and whether there is a reasonable explanation for it, whether the substantive application is sufficiently arguable to support the application for an extension of time and whether there is any prejudice to the other party: see SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [47].
In relation to the extent of the delay, it was submitted by the first respondent that it was excessive, being 20 times the legislated time period. The first respondent further submitted that where a significant period of time has elapsed, the time limit should be rigidly applied in all but exceptional cases; see Re Commonwealth of Australia : Ex parte Marks [2000] HCA 67 (“Ex Parte Marks”) at [16]. The first respondent submitted that this is not an exceptional case.
It was submitted that the applicant’s explanation as to the delay was wholly unsatisfactory. It is well-established that it is the applicant’s responsibility to ascertain their review rights and any applicable time limits: see SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300. In any event, the attachment to the Tribunal’s notification of the decision letter clearly set out that the applicant could apply to the Federal Circuit Court for judicial review of the Tribunal’s decision and that any application must be made within 35 days of the date of the decision.
Whilst
ethere is no specific prejudice to the first respondent, other than the public interest in the finality of administrative decision-making, the mere absence of prejudice cannot, of itself, justify the exercise of the discretion sought by the applicant: see BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33(d)].In considering whether a case has sufficient merit such as to warrant an extension of time, the Court will have regard to the grounds of judicial review at an “impressionistic level”: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62].
In relation to ground one, in the absence of particulars, the first respondent submitted that the ground is meaningless and cannot succeed.
In respect of ground two, the applicant has not identified what “correct religious sources” he is referring to. Ultimately, it is a matter for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts: see Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [76]. Here, the applicant did not provide any information in respect of the Shia or Sunni religions.
Whilst the Tribunal is permitted, pursuant to s 424(1) of the Act, to obtain and have regard to any information which it considered to be relevant, the country information sourced by the Tribunal was clearly relevant to the applicant’s claim to have converted from Sunni to Shia. The weight to be attributed to that information was a matter for the Tribunal: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13].
Contrary to ground three, the Tribunal’s finding in respect of the complimentary protection criteria was not based on any personal opinion. On a fair reading of the Tribunal’s decision, it is evident that the Tribunal relied on its anterior factual findings to conclude that the applicant did not face a real risk of significant harm if he were returned to Malaysia. This was an entirely orthodox approach in circumstances where the “real chance” and “real risk” test imposes the same standard. The Tribunal’s adverse credibility findings were based on rational reasons that were arrived at upon a consideration of matters that were logically probative. It could not be said that no other rational or logical decision-maker could not have drawn the same conclusion: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
CONSIDERATION
The first matter for consideration by the Court is whether an extension of time should be granted for the filing of the Initiating Application before the Court.
As noted by the first respondent, the application is some 723 days outside the 35 day time limit prescribed under s 477(1) of the Act. This is an excessive period of time and, of itself, weighs heavily against the Court exercising its discretion in favour of the applicant.
The explanation put forward by the applicant for the delay is simply not credible. The applicant was clearly advised by the Tribunal of his right to seek judicial review in this Court and the time limit for the lodgement of any Initiating Application in the covering letter sent to him by the Tribunal enclosing the decision of the Tribunal. Claimed ignorance of the right to seek judicial review is simply no excuse for the delay.
The first respondent quite properly concedes that there is no specific prejudice beyond the public interest in the finality of administrative decision-making. That of itself does not justify a decision in favour of the applicant. In Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62], Gyles J stated as follows:
… there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible..
Given the extent of the delay in this matter, this weighs against the exercise of discretion in favour of the applicant. It is in the public interest that there be an end to litigation in relation to the acts or decisions by public officials: see Ex Parte Marks at [15].
In terms of the proposed grounds of judicial review, ground one is meaningless in the absence of particulars. If grounds of judicial review are not supported by particulars, for that reason alone they are liable for dismissal: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]. Accordingly, ground one has no merit.
Ground two suggests that the Tribunal did not refer to “correct religious sources”. There is no general obligation on the Tribunal to investigate any all of the applicant’s claims. The duty imposed on the Tribunal by the Act is a duty to review, not a duty to enquire: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]. It was for the applicant to put such material as he considered relevant to the Tribunal to show that he met the criteria for protection. Accordingly, ground two has no merit.
Ground three similarly has no merit. A fair reading of the Tribunal’s decision indicates that it was not convinced as to the applicant’s conversion from Sunni to Shia. The Tribunal questioned the applicant and it appeared that he did not have knowledge of some central tenants to Shia belief. Further, the Tribunal did not accept that the applicant was made jobless or will be jobless or that he would be persecuted by authorities as a result of being Shia. These findings were open to the Tribunal based on the evidence that was before it and for the reasons it gave. In the Court’s view, there is nothing illogical, irrational or legally unreasonable in these findings.
Having considered all of the relevant material, the Court is of the view that due to the excessive delay in the lodgement of the application for judicial review, the lack of adequate reasons for the delay, the prejudice to the administration of justice as a result of the extensive delay, together with the view of the Court that the proposed grounds of judicial review have no merit, even at an impressionistic level, the application for an extension of time filed on 19 February 2020 should be dismissed.
CONCLUSION
Accordingly, the application for an extension of time is refused. The application is dismissed.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 11 June 2021
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