Aws15 v Minister for Immigration
[2016] FCCA 971
•29 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWS15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 971 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time application – where no affidavit filed – consideration of factors – whether delay explained – whether judicial review application has prospects of success. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.06(1), 44.05(2)(c) Migration Act 1958 (Cth), ss.36(2)(a) and (aa), 91X(1) and (2), 474, 476, 477 Migration Regulations 1994 (Cth) |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263, (1990) 93 ALR 1 Azzi v Minister for Immigration & Multicultural Affairs [2002] FCA 24; (2002) 120 FCR 48; (2002) 195 ALR 166 BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 BZAER v Minister for Immigration & Anor [2014] FCCA 813 Chen v Minister for Immigration & Anor [2014] FCCA 271 Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83; (2009) 257 ALR 427 Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 MZZRO v Minister for Immigration & Anor [2014] FCCA 882 MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 Quan v Minister for Immigration & Border Protection [2013] FCA 1239 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1 Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48 SZDFZ v Minister for Immigration & Citizenship [2008] FCA 390 SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 SZLIH v Minister for Immigration & Citizenship [2009] FCA 108 SZNYE v Minister for Immigration & Citizenship [2010] FCA 500 SZOCH v Minister for Immigration & Anor [2010] FMCA 300 SZQGO v Minister for Immigration & Citizenship [2012] FCA 177; (2012) 125 ALD 449 SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 SZRUG v Minister for Immigration & Anor [2013] FCCA 142 SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 WZAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1580 WZANC v Minister for Immigration & Citizenship [2012] FCA 1461 WZASC v Minister for Immigration & Anor [2013] FCCA 1452 WZATF v Minister for Immigration & Anor [2014] FCCA 333 |
| Applicant: | AWS15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 232 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 17 March 2016 |
| Date of Last Submission: | 17 March 2016 |
| Delivered at: | Perth |
| Delivered on: | 29 April 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the applicant’s application under s.477(2) of the Migration Act1958 (Cth) (“Migration Act”) for an extension of time in which to file an application under s.476 of the Migration Act be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 232 of 2015
| AWS15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal”) made on 14 October 2014. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate”) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) affirming the Delegate’s Decision to not grant the applicant a Protection (Class XA) visa (“Protection Visa”). The Tribunal Decision is at Court Book (“CB”) 247-259.
The Judicial Review Application has been lodged out of time, and pursuant to s.477(2) of the Migration Act, the applicant has applied for an extension of time in which to lodge the Judicial Review Application, (“Extension of Time Application”).
Materials filed by the applicant
The applicant filed an affidavit in support of the Judicial Review Application on 28 May 2015 at the same time as filing the Judicial Review Application (“Applicant’s Affidavit”). The Applicant’s Affidavit does no more than confirm his full name, which cannot be disclosed in these Reasons for Judgment by reason of s.91X(1) and (2) of the Migration Act, and attaches a copy of the Tribunal Decision. The limited nature of the content of the Applicant’s Affidavit is significant in the context of the Extension of Time Application.
The Court notes that pursuant to orders made by a Registrar of the Court on 19 August 2015 the applicant was entitled:
a)by 26 November 2015 to file and serve any amended application giving complete particulars of each ground of review and any affidavit containing additional evidence on which he proposed to rely at hearing; and
b)to file and serve an outline of submissions by 21 days before the hearing in this Court on 17 March 2016,
but that the applicant did not do any of these things.
Factual and procedural background
The factual and procedural background to the Judicial Review Application is set out hereunder.
The applicant:
a)is a citizen of the Democratic Republic of Congo (“DRC”): CB 15;
b)arrived in Australia on 4 May 2012 travelling on a Belgian passport which contained an Electronic Travel Authority permitting him to stay in Australia until 4 August 2012: CB 192;
c)made an application for the Protection Visa on 20 June 2012: CB 1-35;
d)claimed in a statement lodged in support of the Protection Visa application, that if returned to the DRC he would be at risk of harm due to his work as a political activist within the Union pour la Democratie et le Progress Social (“UDPS”): CB 30-35. These claims were changed in subsequent statutory declarations provided to the Department. The applicant further claimed that:
i)in 1996, whilst studying at university, he was marching peacefully in protest against the government. After a confrontation between the army and students, the applicant was wounded after he was dragged on the ground and beaten: CB 31 at [10];
ii)on 7 February 2012, having dropped the General Secretary of the UDPS at the airport for a flight to Germany, which the General Secretary apparently did not get to board, the applicant and a number of other persons were forced out of their car by four men, two of whom were dressed in military uniform and had their weapons visible. They were shoved into the back of a pick-up truck, had their personal belongings confiscated, were blind-folded and had their hands tied up. These men made remarks such as “now you can ask your friends from the party to come and get you” and “we are going to kill you today”: CB 31-32 at [17]-[21];
iii)the applicant and the other persons were driven to an unknown location, at which time water was thrown at them and they were kicked and beaten. They were detained in a small cell for ten days. The hostages were checked up on by guards, whom they understood were the military. After ten days, they were separated, and the applicant was again blindfolded, had his hands tied up and was driven to another location. He found himself in a larger cell with about 20 other activists from UDPS and other political parties: CB 32-33 at [22]-[27]; and
iv)on 1 May 2012, the applicant was told he would be moving to another location “for good”. The next day, the applicant was given additional clothing and was driven to the airport, at which time he was given a ticket, passport and pouch and was told he was going to Belgium and to never come back. In Belgium, the applicant was handed a Belgian passport and told he was going to Australia via Dallas: CB 33 at [29]-[33];
e)provided a statutory declaration to the then Department of Immigration & Citizenship (“Department”, now the Department of Immigration & Border Protection) on 14 September 2012, and stated that at the airport in the DRC, he was handed a Congolese passport which was exchanged for a Belgian passport when he arrived in Belgium, and he used this passport to travel to Australia: CB 75 at [4]. At the airport, the “man” who provided the Belgian passport told him that if he was arrested to tell the truth to the country he was travelling to as they may offer protection: CB 75 at [6];
f)provided a further statutory declaration on 5 June 2013: CB 139-145, making additional claims and changing his claims, after the Department had informed him that they were aware (from evidence given by him in his Protection Visa interview: CB 201) that he had lived in the United States of America (“USA”). He stated that he left the DRC for the USA in 2002 and travelled there on a diplomatic passport arranged by his friend: CB 139 at [6];
g)whilst in the USA, the applicant claimed asylum, married and subsequently separated from an American woman, and was convicted of a misdemeanour: CB 139-140 at [7]-[9];
h)also claimed to have returned to the DCR in 2012 to honour his father's grave, but was arrested at the airport and tortured, but managed to escape: CB 140 at [10]; and
i)outlined in detail misleading statements made in his June 2012 claims, and specifically that his abduction, described above, was fabricated: CB 141 at [12].
In the Delegate's Decision dated 13 March 2014, the Delegate refused to grant the applicant the Protection Visa: CB 191-209.
On 2 April 2014, the applicant lodged an application with the Tribunal for review of the Delegate’s Decision: CB 210-211.
On 21 August 2014, the applicant was invited to appear before the Tribunal to give evidence and present arguments: CB 214-215. He appeared at the Tribunal hearing on 2 October 2014: CB 242-245. Before the Tribunal, the applicant sought to rely upon an affidavit he relied on in his claim for protection in the USA: CB 181-186, however, the applicant conceded that this document contained false information as to dates: CB 253 at [35]. Further claims in this affidavit were relied upon, including that the applicant was present in peaceful protests in the DRC in 1991 and 1992 and further arrested in the DRC in 1994, 2001 and 2002.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)was not satisfied as to the applicant’s identity and proceeded on the basis that the applicant was [name omitted] and that he was born on 21 February 1971: CB 250 at [18];
b)accepted the country of reference for the purpose of the review was the DRC and that the applicant had no right of entry or residence in the USA: CB 251 at [24];
c)formed the view that the applicant was not a credible witness, given that he fabricated claims, relied on false and fraudulent documents and pretended not to speak English in order to conceal his presence in the USA and his identity. It considered the applicant was a wholly unreliable witness as to any aspect of his background, identity or fears: CB 256 at [65]-[66]. It gave the applicant no credit for correcting his previously fabricated claims in circumstances where his claims were not corrected voluntarily: CB 257 at [67];
d)owing to its adverse credibility finding, the Tribunal did not accept as true any material particular of any version of the applicant’s claims: CB 257 at [68]. Specifically, at CB 257-258 at [70]-[82] it did not accept that:
i)the applicant was a UDPS activist, or had any affiliation with that organisation;
ii)the applicant was present at peaceful protests in 1991 and 1992;
iii)the applicant joined the Washington office of the UDPS whilst resident in the USA;
iv)the applicant’s father had been a UDPS activist or any aspect of the abduction incident;
v)the applicant narrowly escaped arrest in 1994;
vi)the applicant was falsely accused of involvement in an incident in March 2001;
vii)the applicant was arrested in 2001 or 2002;
viii)the applicant left the DRC in 2002 because he had been arrested for democracy activities, or because he had been actively involved in the UDPS; or
ix)the applicant returned to the DRC to honour his father's grave, or at all, and was tortured in detention;
e)assessed the applicant's claims against the complementary protection criterion and found that there were no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the DRC, there is a real risk that he will suffer significant harm: CB 259 at [91]; and
f)found that the applicant did not satisfy the criteria in s.36(2)(a) or (aa) of the Migration Act, and affirmed the Delegate’s Decision not to grant the applicant a Protection Visa.
Extension of Time Application
Grounds for Extension of Time Application
In the Judicial Review Application the applicant relies on the following grounds in support of the Extension of Time Application:
1. Application was not lodged earlier as I did not have legal representation.
2.I needed time to find and hire a lawyer.
3. I was not aware this application could be lodged to the court until informed by legal counsel.
Background details
The Judicial Review Application was filed in this Court on 17 March 2015. In order for the Judicial Review Application to have been filed within 35 days of the date of the Tribunal Decision as required by s.477(1) of the Migration Act, it was required to be filed by 14 October 2014. The Judicial Review Application was therefore filed 146 days outside of the statutory time limit, and is incompetent by virtue of s.477(1) of the Migration Act, unless the Court grants an extension of time under s.477(2) of the Migration Act.
Basis for grant of an extension of time
The Court may grant an extension of time if:
a)the application for an extension of time has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order extending time; and
b)the Court considers it necessary, in the interests of the administration of justice, to make the order.
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides that:
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
Factors for consideration regarding the granting of an extension of time under s.477(2) of the Migration Act are well-established, but not exhaustive, in this Court, and are as follows:
a)the extent of the delay;
b)the reasons for the delay;
c)any prejudice to the respondent;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)any exercise of the Court’s discretion; and
g)the merits of the proposed judicial review application:
SZRUG v Minister for Immigration & Anor [2013] FCCA 142 at [8] per Judge Nicholls (and cases there cited) (“SZRUG”); WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [7] per Judge Lucev; MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [6] per Judge Jones (“MZZRO”); SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 at [21] per Judge Lloyd-Jones; BZAER v Minister for Immigration & Anor [2014] FCCA 813 at [4] per Judge Jarrett; Chen v Minister for Immigration & Anor [2014] FCCA 271 at [9] per Judge Barnes.
Application of r.44.05(2)(c) of the FCC Rules
In Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48 (“Sandan”), the Court explained the history of r.44.05 of the FCC Rules, and the nature of the mandatory requirement for an applicant to file an affidavit in relation to any extension of time sought as follows:
16. Rule 44.05 of the FCC Rules provides as follows:
(1) An application for a remedy to be granted in exercise of the Court's jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought--the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
17. Rule 44.05 of the FCC Rules was inserted into the then Federal Magistrates Court Rules 2001 (Cth) (“FMCA Rules”) by the Federal Magistrates Court Amendment Rules 2005 (No.1)(Cth) in the following terms:
44.05 Application for order to show cause
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the form of application under the Migration Act set out in Part 1 of Schedule 2.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought — the reasons for any delay and the reasons why an extension should be granted.
This was part of a suite of amendments brought in by the Migration Litigation Reform Act 2005 (Cth).
18. Rule 44.05 of the then Federal Magistrates Court Rules 2001 (Cth) (“FMCA Rules”) was first amended by the Federal Magistrates Court Amendment Rules 2007 (No.1) (Cth) by replacing the words “form of application under the Migration Act set out in Part 1 of Schedule 2” with the words “approved form”.
19. Rule 44.05 of the then FMC Rules was amended again by the Federal Magistrates Court Amendment Rules 2009 (No.1) (Cth) (“the 2009 Amendment”) by substituting for the then para.(c) of r.44.05(2) of the FMC Rules the following:
(c)(c) if an extension of time is sought — the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension
20. The Explanatory Statement accompanying the 2009 Amendment stated that the 2009 Amendment reflected amendments under the Migration Legislation Amendment Act 2009 (No. 1) (Cth) (“Migration Amendment Act 2009 (No. 1)”) to s.477 of the Migration Act (“2009 s.477 Amendment”).
21. The 2009 s.477 Amendment was a significant change to the process by which extensions of time might be granted to applicants. Section s.477(2)(a) was inserted into the Migration Act requiring applicants to state the reasons in their applications why it is in the interests of the administration of justice to grant an extension of time. The time for application was extended from 28 to 35 days, and the limitation of a maximum allowable extension (at that time being 56 days) was removed. This gave the Court wide discretion if it is in the interests of the administration of justice to grant an extension. The Second Reading Speeches and Explanatory Statement to the Migration Amendment Act 2009 (No. 1) stated that requiring applicants to give reasons for an extension of time in their applications was intended to assist the Court by drawing attention to cases where there were compelling reasons to extend time, so as to enable quicker and more efficient disposal of any applications to extend time.
22. The critical change to r.44.05(2)(c) of the then FMC Rules is that the word “reasons”, a synonym of explanation, was omitted, and the word “evidence” substituted. The distinction between the words is glaring. The use of the word “evidence” expressly requires that more than mere explanation be provided in support of any application for an extension of time. The intended purpose of the 2009 s.477 Amendment to promote efficiency in dealing with extension of time applications was supported by the requirement arising from the 2009 Amendment to provide evidence on affidavit, thereby facilitating proof of the reasons asserted in the extension of time application. That proof can be seen to be necessary, for without it, it would be very difficult for the Court to find facts necessary to satisfy it as to what is, or is not, in the interests of the administration of justice for the purposes of s.477(2)(b) of the Migration Act.
23. In Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 (“A’Hearn”) the Full Court of the Federal Court stated that although it was to be expected an explanation for the delay would normally be given, “there was no rule that such an explanation is an essential pre-condition”: A’Hearn at 444 per Black CJ, Gray and Burchett JJ, but, as the Federal Court has otherwise observed, the failure to provide any adequate explanation for the delay may, of itself, provide sufficient reason to refuse the extension of time sought: SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 at [7] per Stone J (“SZMWH”).
24. In this case there is, however, a statutory rule, and unless compliance with that rule is dispensed with in the interests of justice under r.1.06(1) of the FCC Rules – which provides that: “The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules, at any time” – the requirements of r.44.05(2) of the FCC Rules are mandatory because of the use of the word “must”: Wang, FCR at 391 per Merkel J; Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors [2010] FMCA 932; (2010) 244 FLR 335 at [35]-[40] per Lucev FM, and cases there cited, applied in WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [9] per Judge Lucev (“WZASC”). Therefore, absent dispensation under r.1.06(1) of the FCC Rules, the FCC Rules prescribe that there must be an explanation provided on affidavit as to, firstly, the delay and, secondly, why it is necessary in the interests of the administration of justice for the Court to grant an extension of time.
25. The history of r.44.05(2)(c) of the FCC Rules, and its enactment and amendment at the same time as related amendments to the Migration Act, demonstrate that its purpose is to provide the factual foundation upon which the Court can judicially determine whether or not to make an order extending time for an applicant to make an application under s.476 of the Migration Act.
26. The interaction between s.477(2) of the Migration Act and r.44.05(2)(c) of the FCC Rules appears to work in the following manner:
a. if an application for an order to extend time has been made in writing and specifies why the applicant considers that it is necessary in the interests of justice to make that order, and the Court is so satisfied, compliance with the requirement to file an affidavit under r.44.05(2)(c) of the FCC Rules may be dispensed with;
b. any waiver under r.1.06(1) of the FCC Rules of compliance with r.44.05(2)(c) of the FCC Rules requires the Court to do what justice appears to require: Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 at [7] per Kiefel J; provided that there is rational basis upon which the discretion may properly be exercised: SZNPI v Minister for Immigration & Citizenship [2010] FCA 106 at [12] per Flick J, and bearing in mind that caution may be required before too readily departing from the requirements imposed by the FCC Rules: Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30] per North, Flick and Jago JJ and SZTKB v Minister for Immigration & Border Protection [2014] FCA 653 at [14] per Flick J; and
c. the basis for dispensing with compliance in the absence of an affidavit might be established in circumstances where, for example:
i. the relevant facts concerning the extension of time application are the subject of a statement of agreed facts; or
ii. the relevant facts concerning the extension of time application are the subject of other agreements or concessions made at hearing; or
iii. an applicant is given leave to adduce oral evidence in relation to factual material relevant to an extension of time; or
iv. the alleged jurisdictional error is either established (as in SZTDM (No.2)) or so likely to be successful as to negate the necessity for the Court to deal with factual issues ordinarily required to be determined on an application for an extension of time (for example, issues such as the explanation for the delay and prejudice to the respondent: see the authorities cited at [32] below).
27. The above examples might be expanded upon, but absent something of their ilk, there could not otherwise be a judicially justifiable reasonable basis for dispensing with compliance with the requirement imposed upon an applicant by r.44.05(2)(c) of the FCC Rules to file an affidavit setting out the factual material relied upon by the applicant seeking to justify an order for an extension of time.
28. In SZTDM v Minister for Immigration & Anor (No.2) [2013] FCCA 2060 (“SZTDM (No.2)”) this Court observed as follows:
Under r.1.06(1) of the Federal Circuit Court Rules the Court may dispense with compliance with the requirements of the Rules. Insofar as it is necessary to do so, in the particular circumstances of this case where a jurisdictional error on the part of the Tribunal has been established, I would dispense with compliance with the requirements of r.44.05(2)(c) of the Rules. There is no requirement for an affidavit containing an explanation for delay in the Migration Act. I am of the view that it is open to the Court to grant an extension of time under s.477(2) of the Act notwithstanding non-compliance with r.44.05(2)(c) of the Federal Circuit Court Rules if the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
SZTDM (No. 2) at [10] per Judge Barnes.
29. SZTDM (No.2) was a case dealing with its particular circumstances, but clearly falls within the category referred to at [26(iv)] above in which it is unnecessary for an affidavit under r.44.05(2)(c) of the FCC Rules to be filed because jurisdictional error on the part of the administrative decision-maker, in that case the Refugee Review Tribunal, had been clearly established, and obviously sufficiently so to warrant waiving compliance with r.1.06(1) of the FCC Rules.
30. In this case there is no explanation for the delay or why the interests of the administration of justice make it necessary for the Court to grant an extension of time, because there is no affidavit setting out the necessary evidence. Nor is there any obvious jurisdictional error in the Tribunal Decision. The applicant has therefore failed to satisfy the prescribed criteria in r.44.05(2)(c) of the FCC Rules for the Court to grant an extension of time and the Court has not dispensed with compliance with r.44.05(2)(c) of the FCC Rules, and there is no basis for doing so. In the circumstances, the extension of time application must fail: WZASC at [9] per Judge Lucev and Islam v Minister for Immigration & Anor [2013] FCCA 1687 at [16] per Judge Lucev.
The applicant has failed to file a supporting affidavit explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant the extension, as required by r.44.05(2)(c) of the FCC Rules.
The applicant has therefore failed to satisfy the prescribed criteria under r.44.05(2)(c) of the FCC Rules for the Court to grant an extension of time. Further, the Court has not dispensed with compliance with r.44.05(2)(c) of the FCC Rules pursuant to r.1.06(1) of the FCC Rules. In the Court’s view there is no basis for doing so, particularly in circumstances where, for reasons set out below, the Judicial Review Application has no prospects of success. In the circumstances, the Extension of Time Application must fail on the basis of non-compliance with r.44.05(2)(c) of the FCC Rules: Sandan at [30] per Judge Lucev.
Lest there be error in the Court’s view that the Extension of Time Application ought to be dismissed for non-compliance with r.44.05(2)(c) of the FCC Rules, the Court will address the factors usually considered in an extension of time application, which are set out above: see [15] above.
Length of delay
The Court notes that the delay is 146 days. That delay is substantial and weighs against an extension of time under s.477(2) of the Migration Act.
Reason for delay
That the applicant is unrepresented does not, of itself, justify an extension of time being granted: SZNYE v Minister for Immigration & Citizenship [2010] FCA 500 at [9] per Katzmann J.
Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J (“SZSDA”). As the Federal Court observed in SZSDA:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay…
SZSDA at [38] per Foster J, followed in MZZRO at [34] per Judge Jones and MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 at [15] per Judge F Turner.
Insofar as the applicant complains that he did not have the services of a lawyer to assist him, that also does not assist the applicant in terms of an explanation of the delay. There is no right to legal representation in migration proceedings in this Court, nor any right to free legal advice: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev. It follows that a lack of legal representation cannot of itself be a reasonable explanation for a delay in filing judicial review proceedings in this Court.
The lack of a lawyer to represent or assist the applicant does not assist him as the onus is on the applicant to make proper enquiries or to take reasonable steps to ascertain whether there are rights of review, and as to any applicable time limits: SZOCH v Minister for Immigration & Anor [2010] FMCA 300 at [43] per Nicholls FM; SZLIH v Minister for Immigration & Citizenship [2009] FCA 108 at [33] per Cowdroy J.
The applicant is not assisted by the concession he made at the hearing before the Court that he did have lawyers to whom he turned for advice, but that a lawyer was not retained for the hearing in this Court: Transcript, 17 March 2016, page 3, lines 3-11 and page 4, lines 20-22. It is plain therefore that at least grounds 1 and 2 cannot be made out because the applicant, on his own admission, did have a lawyer available for advice, but chose for that lawyer not to represent him in the proceedings in this Court. The failure of the applicant to file any evidence means that there is no evidence before the Court as to what advice, if any, the applicant received concerning the time limit for lodging a Judicial Review Application under s.477(1) of the Migration Act, or, if any advice was given, when that advice was given, and the proximity of that advice to the filing of the Judicial Review Application with the Registry. Thus, both any advice given by the lawyer to the applicant, and the time-frames associated with that advice, remain unexplained.
In all the circumstances, for the above reasons, there is no satisfactory reason for the delay in filing the Judicial Review Application. This weighs against the grant of an extension of time.
Prejudice to the Minister
In terms of prejudice to the Minister it is plain that there would be some prejudice caused by reason of the Minister having to argue an application, and incur costs in respect thereof, when there might have been an expectation that the matter was at an end. Further, in the circumstances of this case, where, for reasons set out below, no jurisdictional error is established, that prejudice is compounded.
Impact on applicant
The impact on the applicant of a failure to extend time for making the Judicial Review Application will be negligible, as, for reasons set out below, the Judicial Review Application has no reasonable prospect of success because no jurisdictional error is established.
Public interest and exercise of discretion generally
As to the interests of the public at large this matter is determinable on existing well understood provisions in the Migration Act and Migration Regulations 1994 (Cth) and applicable legal principles, and is peculiar to its own facts. Nothing in the matter excites the interests of the public at large. For similar reasons, there is nothing otherwise in the circumstances of the matter which would warrant the exceptional exercise of the Court’s discretion to otherwise extend time for the making of the Judicial Review Application.
Merits of the Judicial Review Application
Turning to the Judicial Review Application, the applicant relies on the following grounds of review:
1. Information was provided by me of my identity in the USA I was honest about the information when asked but in the decision it is not outlined that I was the one that was fourth coming with the information
2. I was in America starting in 2002 which is not outlined in the paper work it mention that I was coming into the country in 2006, this information I have found to be incorrect.
3. Point 20 stating that documentation of family and images are believed to be not genuine, I feel that I provided enough images to show my family members in Congo and who they are.
4. I feel I do not have the paperwork on some points that are mentioned to show additional information to prove some of the points that I have made to be genuine.
5. if given the opportunity to be heard in court I feel I can explain my situation better and outline the cause clearly in what I was saying and show additional information on the review.
6. I also feel on this information if I had the means to take legal counsel sooner they would of helped me to understand better the paperwork and information I was asked to review and sign with immigration I feel that some forms that I signed I did not understand clearly the ramifications of the words outlined. I feel that in signing these statements I was not fully aware of my legal rights at the time.
7. I would also like to be given the opportunity to present new documentation evidence for some of the points outlined in the refusal that I now have available once I requested the information to be sent from the USA.
The applicant was afforded the opportunity to make oral submissions notwithstanding his failure to file written submissions, and to the extent that anything relevant was raised in those oral submissions it is dealt with at appropriate points in these Reasons for Judgment.
It is well established that a court should not exercise its discretion to extend time to appeal, even for a short period, if an appeal has no prospect of success: SZQGO v Minister for Immigration & Citizenship [2012] FCA 177; (2012) 125 ALD 449 at [29] per Murphy J and the authorities there cited. This principle applies to the Extension of Time Application: SZSDA at [39] per Foster J; SZRUG and the discussion of the merits of the grounds at [32]-[87] and the conclusion at [88] per Judge Nicholls.
Ground 1
Ground 1 cavils with the Tribunal’s assessment of the applicant's credibility as a wholly unreliable witness.
The tenor of the Tribunal’s credibility concerns in relation to the applicant are set out at some length in the Tribunal Decision at CB 254-256 at [46]-[58], as follows:
46. Relying on the information provided by the applicant to the Department in the course of its assessment of his claims, the information contained in the delegate's decision record which the applicant had provided to the Tribunal, and aspects of the evidence the applicant had given to the Tribunal, I raised six matters which I explained at hearing put his credibility in issue, and might, individually or cumulatively, lead me to conclude that I could not accept any material particular of his claim, subject to any comment he wished to make. I recount those matters below, inclusive of the applicant's response.
47. First, I explained that the discussion we had earlier in the hearing and my uncertainty as to his identity was relevant to his credibility generally.
48. In response the applicant old me he was who he was, [name omitted].
49. Second, I explained that I was concerned by his acknowledgment that he had provided false and misleading information to the Department in the course of its assessment of his claims for protection in Australia. I further indicated that it had not escaped me that his admission of this false and misleading information had only been made after the Department was fully aware based on information from the United State that his first claims could not possibly be true.
50. In response, the applicant explained that he had admitted to having provided false and misleading information, but explained it was out of concern to have a strong claim for asylum and arose out of fear about returning to the DR Congo.
51. The applicant said he regretted providing the false claims but he had admitted this. I mentioned again that I was conscious that his admission had arisen when the Department already knew his claims weren't true and he had been put on notice of that. The applicant said he recognised he would end up nowhere with lies and was now telling the truth.
52. Third, I explained I was concerned by the applicant's admission to have provided false and fraudulently altered and issued documents to the Department
53. In response the applicant acknowledged he had done wrong and had nothing further to add.
54. Fourth, I explained I was concerned that the applicant had acknowledged that he had pretended not to speak English in order to conceal the fact that he had resided long-term in the United States.
55. In response, the applicant explained that he had been advised to do this by his brother-in-law in order to obtain the assistance of an asylum seeker support service (no longer acting for the applicant). The applicant underscored that he had admitted this. He said that after he decided to speak the truth, he has spoken in English.
56. Fifth, I explained that I was concerned that the change to the narrative of his claim was fundamental and arose after he was confronted with evidence that he was not in the DR Congo at the time of the main incident (the abduction). I recounted the first set of claims put forward by the applicant and how concerned I was that this had been completely abandoned as untrue.
57. The applicant elaborated on his current claims, telling me that when he travelled to the DR Congo he only had $7000, and he gave $2000 to the person who helped him escape. This person had also known his father.
58. Sixth, I explained that I was concerned by the information he had provided to the Department to the effect that he had flown to Australia on a flight from Dallas. I explained that I was concerned that it did not seem plausible that he would be able to transit through the United States after he had been deported from that country, or would even attempt to do so in those circumstances. I explained it seemed implausible to me that if, as he claimed, he escaped the DR Congo via Belgium, that he would choose to travel from Belgium to Australia via Dallas. I explained this was not a direct or obvious route to travel. I explained that I was suspicious that in light of the information that he had arrived in Australia on a flight from Dallas that he had in fact travelled to Australia directly from the United States, and had not returned to the DR Congo (where he claimed to have been arrested, tortured and escaped in 2012) as he claimed.
It is plain that the Tribunal’s concerns about the applicant’s credibility gave rise to its conclusions with respect to the applicant’s credibility, which were expressed as follows in the Tribunal Decision at CB 256-257 at [65]-[68]:
65. I have formed the view that the applicant is not a credible witness about his experiences and his fears. I am not satisfied as to the truthfulness of any particular put forward by the app1icant as to his identity, background, experiences or fears for returning to the DR Congo.
66. The applicant has demonstrably fabricated claims, relied on false and fraudulent documents, pretended not to speak English in order to conceal his presence in the United States and obfuscated his true identity. In my view, the applicant is a wholly unreliable witness as to any aspect of his background, identity or fears.
67. I extend no credit to the applicant so as to inform upon the truthfulness of his current claims as a consequence of his admissions of having previously fabricated claims and produced false and fraudulent document. [sic] The applicant can be seen in my view to have responded to clear evidence wholly inconsistent with the truthfulness of his claims. It is not the case that the applicant has voluntarily correct his claims. Indeed, I have noted that the applicant did offer corrections to his claims to the Department, while maintaining the fundamental fabrication of the abduction incident.
68. I do not accept as true any material particular of any version of the applicant’s claim to fear harm in the DR Congo.
The Tribunal went on to reject each element of the applicant’s claims in subsequent paragraphs in the Tribunal Decision: see CB 257-259 at [69]-[92], and to accordingly affirm the Delegate’s Decision not to grant the applicant a Protection Visa: CB 259.
Credibility is a matter for the Tribunal par excellence: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J. In this case the Tribunal specifically said that no credit was to be extended to the applicant as a consequence of his admission of having previously fabricated claims and provided fraudulent documents: CB 257 at [67]. The Tribunal’s approach is hardly surprising in view of the long history that the applicant had of previous fabrication of claims and provision of fraudulent or incorrect documents, both in the USA and in Australia: see, for example, the various names and dates of birth presented to various authorities both in Australia and the USA by the applicant: CB 249 at [10], incorrect passport and driver’s licence details: CB 249-259 at [14]-[16], and the provision of false and misleading information to the Department in the course of its assessment of his claims for protection in Australia: CB 255 at [49]. This was a case where, notwithstanding that the applicant alleged that he had finally been forthcoming about previous fabricated claims and fraudulent documents provided, it was open to the Tribunal to disbelieve, or attribute no weight to, the applicant’s evidence: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59; (2003) 73 ALD 1 at [12] per Gleeson CJ and [49] per McHugh and Gummow JJ; WZAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1580 at [20]-[22] per French J. It follows that no jurisdictional error in the Tribunal Decision arises in respect of ground 1.
Ground 2
Ground 2 is merely an assertion that the Tribunal made an error, but not a jurisdictional error. The reference to the "paper work" is vague, and it is not apparent that it is a reference to the Tribunal Decision, and, if it is, how the alleged error amounts to a jurisdictional error. As presently put ground 2 asserts no more than a factual error which, without more, does not constitute a jurisdictional error: Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263, (1990) 93 ALR 1; CLR at 35-36 per Brennan J; SZDFZ v Minister for Immigration & Citizenship [2008] FCA 390 at [40] per Flick J; WZATF v Minister for Immigration & Anor [2014] FCCA 333 at [19] per Judge Lucev. In any event, the reference to 2006 in the context of the USA relates to information provided from the USA based on biometric and fingerprint matching and source documents from a range of dates between 2006 and 2012, which relate to the applicant’s identity: CB 250 at [18]. That part of the Tribunal Decision does not relate to, and does not purport to, make any findings as to when the applicant was, or was not, in the USA. Even if it did, it would not assist the applicant, as it would still be a factual error, and in light of the Tribunal’s findings on credibility, which were still open on other material before the Tribunal, was not a factual error going to jurisdiction.
In the circumstances, ground 2 does not establish jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 directly challenges factual findings made by the Tribunal in relation to documentation and photographs alleged to be of the applicant’s family. The applicant admitted that what was sought under this ground was to have the Court make a factual finding different to that made by the Tribunal on the basis of photographs included in the CB: Transcript, 17 March 2016, page 11, lines 27-33. Reviewing and altering findings of fact made by the Tribunal is not the role of this Court upon judicial review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”)
At CB 250 at [20] in the Tribunal Decision the Tribunal said as follows:
20. I add also that I have considered the further documents pertaining to the applicant's identity discussed in further detail below. I place no weight on the court document purportedly issued in the DR Congo, and am not assisted by the collection of photographs provided by the applicant of himself with members of his family. I find the purported court document to be inherently unreliable as to the assertions of the applicant's identity given its contents even assuming it to be a genuinely issued document (which I do not assume), and the photographs of the applicant with other people do not carry any probative weight on the issue of his identity.
In relation to the court documents and family photographs referred to at CB 250 at [20] the Tribunal said at CB 254 at [40]-[41] that:
40. The applicant described a court document from the DR Congo pertaining to his birth, and identifying him as [name omitted]. The applicant confirmed he had produced it in order to support his identity. I explained to the applicant that I was concerned it might be fake or fraudulently issues [sic] or altered like the other identity documents we had discussed. The applicant told me it was not fake and the only proof of birth available from his country.
41. I asked the applicant why he had provided photographs. The applicant told me they were of his family and I could see that it was him in the photographs.
The Tribunal was entitled to attribute no weight to the photographs tendered by the applicant in relation to the issue of his identity. Even if, as appears to be the case, the applicant was in those photographs, the Tribunal does not appear to have had other evidence upon which it could rely to establish the identity of the other people in the photographs, and whether they were friends or associates of the applicant. That issue, was in any event, an issue of fact, and not one giving rise to jurisdictional error. The Tribunal was otherwise entitled to make an assessment of the applicant’s credit and then give attention to the corroborative evidence in the form of the documents referred to in ground 3, and to give no weight to the documents based upon its view of the applicant’s credibility, provided that the Tribunal, as it did here, raised the issue with the applicant: see Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [37] per North and Lander JJ (“SZNSP”); Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83; (2009) 257 ALR 427 (“SZMOK”); WZANC v Minister for Immigration & Citizenship [2012] FCA 1461 at [73]-[76] per Gilmour J (“WZANC”).
It follows that ground 3 is not made out, and does not establish any jurisdictional error in the Tribunal Decision.
Ground 4
To the extent that the applicant did not have paperwork in relation to some matters the Tribunal Decision cannot be vitiated by jurisdictional error on the basis of documentation that the applicant did not, or was not able to, put before the Tribunal, or in respect of which he failed to seek additional time to put before the Tribunal. An administrative decision-maker is entitled to rely upon the materials supplied by an applicant, and has no duty to seek out additional material, unless that material is known to be readily available: Azzi v Minister for Immigration & Multicultural Affairs [2002] FCA 24; (2002) 120 FCR 48; (2002) 195 ALR 166 at [102]-[103] per Allsop J. No jurisdictional error arises in relation to ground 4.
Ground 5
Ground 5 constitutes an impermissible request for the Court to undertake a review of the merits of the Tribunal Decision, which is no function of this Court: Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Ground 5 does not establish jurisdictional error by the Tribunal.
Ground 6
For reasons set out above the fact (if it be so: see [25] above) that the applicant did not have the services of a lawyer does not establish jurisdictional error in the Tribunal Decision because there is no right to legal representation in migration proceedings in this Court, nor any right to free legal advice: and the onus is on the applicant to make proper enquiries or to take reasonable steps to ascertain information in relation to his rights of review: see [23]-[25] above.
Insofar as ground 6 refers to paperwork and information that the applicant was asked to review and sign “with immigration” and which he says that he signed but did not understand the ramifications of, and was not fully aware of his legal rights at the time, it is not apparent that this was a matter raised before the Tribunal, and is therefore not a matter in respect of which the Tribunal made any jurisdictional error. Furthermore, the ground is so vague and non-specific as to what “paperwork and information” is referred to that it is not apparent that what is being complained of is any part of the Tribunal process. Nothing said by the applicant in his oral submissions before the Court suggested that this ground related to the Tribunal’s processes, or otherwise elucidated the content of this ground.
Ground 6 fails to establish jurisdictional error by the Tribunal.
Ground 7
Insofar as ground 7 seeks to simply have the Court consider new documentation now received from the USA, it appears to be no more than an attempt to engage this Court in impermissible merits review having regard to documents which, whilst seemingly available to the applicant upon request, were not put before the Tribunal by him. In that regard, the merits review sought by the applicant under this ground is no function of this Court: Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Ground 7 does not therefore establish jurisdictional error in the Tribunal Decision.
Newspaper article
The applicant claimed during the course of the hearing that a newspaper article which he tendered to the Tribunal was not considered by the Tribunal. The Tribunal Decision demonstrates however that the Tribunal did give consideration to the newspaper article tendered by the applicant, however, the Tribunal gave no weight to the “document purporting to be a newspaper article” relating to the applicant’s treatment in the DRC, observing at CB 258 at [85] that:
85. In reaching this view, I have taken into account the document purporting to be a newspaper article relating to his treatment in the DR Congo. I accept that the article may appear in a newspaper in the DR Congo, but I do not accept that the contents of the article are true. As mentioned in the hearing, I consider the context and content of that newspaper article to be implausible. I place no corroborative weight on the article in respect of the applicant’s claims repeated in that article.
The approach adopted by the Tribunal Decision to the newspaper article was, in the circumstances, one which was open to it for the same reasons as are set out in relation to ground 3 above. In that respect see SZNSP, SZMOK and WZANC cited at [43] above. No jurisdictional error arises in relation to the Tribunal’s treatment of the newspaper article.
Conclusion – merits of the Judicial Review Application
Having regard to the reasons set out above in relation to grounds 1 to 7: see [33]-[52] above, the Tribunal Decision is not the subject of jurisdictional error as alleged, or otherwise. As there is no jurisdictional error in the Tribunal Decision, it is a privative clause decision within the meaning of s.474 of the Migration Act.
Conclusions and orders
Having regard to the reasons set out above the Court has concluded that:
a)the applicant has failed to satisfy the prescribed criteria under r.44.05(2)(c) of the FCC Rules for the Court to grant an extension of time; or
b)alternatively, the Court would not exercise its discretion in any event to extend time having regard to the usual factors, but in particular the fact that there is no satisfactory reason for the delay in filing the Judicial Review Application and because the Judicial Review Application is without merit and has no prospect of success,
and therefore the Court cannot, or it is not in the interests of the administration of justice for the Court to, extend time under s.477(2) of the Migration Act. It follows that the Extension of Time Application ought to be dismissed, and there will be an order accordingly.
In the circumstances, it is unnecessary therefore to make a further order that the Judicial Review Application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J.
The Court will hear the parties as to costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 29 April 2016
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