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) |
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- Case
- [2016] FCCA 971
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Federal Circuit Court was whether it was necessary in the interests of the administration of justice to grant the applicant an extension of time to file his judicial review application. This required the court to consider established factors, including the extent and reasons for the delay, any prejudice to the respondent, the impact on the applicant if an extension was refused, the public interest, and crucially, the merits of the proposed judicial review application. Furthermore, the court had to consider the requirements of Rule 44.05(2)(c) of the *Federal Circuit Court Rules 2001* (Cth), which mandates that an application for an extension of time must be supported by an affidavit explaining the delay and demonstrating why an extension is necessary in the interests of justice.
In its reasoning, the court noted that the applicant's affidavit in support of the judicial review application was minimal, merely confirming his name and attaching the Tribunal's decision. Critically, the applicant had failed to file any affidavit explaining the substantial delay in lodging the judicial review application, nor had he provided any evidence to demonstrate why an extension was necessary in the interests of justice, as required by Rule 44.05(2)(c). The applicant's stated reasons for the delay – lack of legal representation and time to find a lawyer – were deemed insufficient, particularly given the significant period of delay and the lack of any supporting evidence. The court also observed that the applicant had failed to comply with earlier directions to file amended applications and outlines of submissions.
Consequently, the court dismissed the applicant's application for an extension of time. As the judicial review application was filed outside the statutory time limit and no extension was granted, the application for judicial review was rendered incompetent.
Orders
Orders of the court
1.
That the applicant’s application under s.477(2) of the Migration Act 1958 (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
1.
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.
2.
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
3.
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.
4.
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
5.
The factual and procedural background to the Judicial Review Application is set out hereunder.
6.
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].
7.
In the Delegate's Decision dated 13 March 2014, the Delegate refused to grant the applicant the Protection Visa: CB 191-209.
8.
On 2 April 2014, the applicant lodged an application with the Tribunal for review of the Delegate’s Decision: CB 210-211.
9.
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
10.
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
11.
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
12.
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
13.
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.
14.
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.
15.
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
16.
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
Background
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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