AXX15 v Minister for Immigration

[2016] FCCA 1166

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXX15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1166

Catchwords:
MIGRATION – Judicial review – application is 17 months out of time – no arguable case raised – applicant cross examined – applicant not credible.

Legislation:

Migration Act 1958 (Cth), ss.476, 477(2)

Federal Circuit Court Rules 2001 (Cth), r.44.05

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZZIV v Minister for Immigration and Border Protection [2013] FCA 120
SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298
Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12
Jackamarra v Krakouer [1998] HCA 27
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Minister for Immigration v Wu Shan Liang (1996) CLR 259
Ex Parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 547

Applicant: AXX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1261 of 2015

Judgment of: Judge Harland

Hearing date: 13 April 2016

Date of Last Submission: 13 April 2016

Delivered at: Melbourne

Delivered on: 16 May 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Wood

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application for leave to proceed out of time filed on 4 June 2015 is dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1261 of 2015

AXX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant filed an application for a protection (Class XA) visa on 23 July 2012. The delegate handed down a decision on 30 November 2012. The applicant reviewed that decision and the Tribunal handed down its decision affirming the delegate’s decision on 9 December 2013.  The applicant filed an application for judicial review on 4 June 2015.  The application is filed 17 months out of time.

2. The applicant was not legally represented.  He had the assistance of an Urdu interpreter. Before commencing the substantive part of the hearing I spent some time explaining to the applicant the nature of the proceedings and the differences between the hearing he had before the Tribunal and the more limited nature of the proceedings before this Court. I acknowledge that it is very difficult for the self-represented litigants, whether or not English is their first language, to understand the technical legal nature of migration proceedings, no matter how plainly judges try to explain to them.

3. With this in mind it is important to carefully consider the Tribunal’s decision to see whether or not there is a claim that the applicant has not been able to formulate properly. Given the high stakes involved in protection visa applications, it is even more important in those cases.

4. The applicant is from Pakistan. He is Punjabi and Muslim. He claims that he was attacked, kidnapped and tortured. The applicant claimed to be a member of the Asara Welfare Organisation (“Asara”) in Pakistan, assisting the poor. He claims to have been targeted by religious extremists because of his volunteer work with Asara.

5. The Tribunal member identified several inconsistencies in the applicant’s evidence and made adverse credibility findings against him.

6. The Tribunal contacted Mr Bhatti and Mr Hassain from Asara and summarised the telephone call with them in their decision.

7. The Tribunal decision records putting adverse information to him and records the applicant’s replies. The Tribunal correctly identifies the need to be careful when assessing credibility at [100]. At [109] the Tribunal found that the applicant was not a credible witness based on the concerns it had expressed in the previous paragraph.

Out of time application

1. The applicant filed an affidavit with his application explaining the delay. In his application he sought an extension of time on the following grounds:

   a)The applicant was unrepresented and did not understand the legal process;   

   b)It is in the interests of the administration of justice to grant the extension of time; and

   c)The applicant fears persecution if returned to Pakistan.

2. Pursuant to section 477(2) of the Migration Act 1958 (Cth) an applicant must file an application for judicial review within 35 days of the migration decision being made. The Federal Circuit Court of Australia has a discretion to extend the time pursuant to s.477(2) which states:

   (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3. Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) 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.

4. Foster J conveniently summarises the issues the court must consider when considering an out of time application in SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [45] to [48]:

   Section 477(2) requires an applicant for an extension of time to make his or her application in writing and to specify in that application why the applicant considers that it is necessary in the interests of the administration of justice to make the order (s 477(2)(a)).  The section also requires that the Federal Magistrates Court be satisfied that it is necessary in the interests of the administration of justice to make the order for an extension of time before making such an order.  The material to which the Court’s attention will ordinarily be directed for the purpose of the Court’s consideration of whether it is so satisfied will be the material relied upon by the applicant for an extension of time.  The Federal Magistrates Court will not be confined to a consideration of the applicant’s material alone but that material will nonetheless constitute an important part of the material upon which the Federal Magistrates Court might reach the requisite level of satisfaction.

   There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”.  The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context.  Commonly, those factors include:

   (a)     Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b)     Whether there is any prejudice to the Minister;

   (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case.  They are simply sensible guidelines developed by the courts which have utility in most cases.

5. The applicant said in his affidavit he did not understand the legal process following a negative decision from the Tribunal. He says he misunderstood the correspondence received from the Department was a covering letter enclosing the decision which referred to the applicant being required to pay the fee of $1,540 as a result of being unsuccessful in his review application. He says he thought the purpose of the fee was to make an appeal to the Federal Circuit Court of Australia. He says he did not know that an appeal had not been lodged until he contacted the Department to inform them of his change of address.

6. After finding out that an appeal had not been lodged he sought legal advice and says he was advised to seek ministerial intervention. He received a letter from the Department dated 20 March 2015 refusing his requests for ministerial intervention indicating that he may be eligible to seek a partner visa.

7. The applicant received a letter dated 22 May 2015 rejecting his application for a waiver to the no further stay condition of his visa. The letter refers to his relationship and personal circumstances and finds that he does not meet the visa requirements.

8. The applicant filed his application to this Court on 4 June 2015.

9. Counsel for the Minister sought to briefly cross-examine the applicant with respect to the out of time application. His cross examination turned out to be more expansive because of the inconsistent answers the applicant gave.

10. I will not repeat all of the points raised in cross examination but will discuss the main ones. During cross-examination the applicant frequently said that he paid the $1,540 thinking that this was for ministerial intervention. When it was pointed out to him that in his affidavit he said he thought it was to lodge an appeal with the Federal Circuit Court of Australia. He said this was wrong and he always thought it was for ministerial intervention. Mr Wood pointed out to him that his affidavit was prepared with the assistance of a solicitor and an Urdu interpreter by telephone. The applicant said it was a volunteer solicitor. He said that the solicitor got it wrong. He then said that the affidavit was not read to him in Urdu and he just signed it. That would suggest serious negligence on the part of the solicitor.

11. The letter he received mentioning the fee also attached the Tribunal’s decision which is lengthy. The applicant says he did not read the letter or the decision as he cannot understand English and did not ask anyone to read it to him. He says he put the decision aside at home and did not go back to it.

12. When asked why he paid the fee when he did not know what the decision said he said he saw the figure and went to pay it. Later the applicant said he had spoken to someone who told him that after the hearing you ask for ministerial intervention.

13. The applicant paid the fee on 16 December 2013, a few days after receiving the decision. Mr Wood suggested to him that this meant he did know that the decision was adverse to him. The applicant replied that he knew about ministerial intervention because his then solicitor had told him that he was unlikely to succeed before the Tribunal and the next step would be to seek ministerial intervention.

14. Mr Wood challenged him about this evidence pointing out that three months before the hearing he withdrew authority for his solicitor to act and thereafter acted for himself. The change of contact details and withdrawal of that authority appears at CB 333 and 334. The applicant said that his lawyer had told him at the time that he was most likely not to be successful and that the next step would be a ministerial intervention that the lawyer asked for a lot of money and he could not afford to continue paying him.

15. I pointed out the inconsistency in his evidence to him. It does not make sense that he said on the one hand he did read the decision yet on the other hand thinks it may be unfavourable to him so he pays a fee for what he thinks is ministerial intervention. His evidence was that his former solicitor had advised him about ministerial intervention. He says that what he meant was that it was in the back of his mind that he might not be successful and so when he saw the fee amount he paid it.

16. Mr Wood suggested to the applicant that he speaks and understands some English. He showed the applicant the case notes that appear at CB 335. There is a case note recorded on 2 October 2013 which notes that the applicant called and that his ID was checked. The applicant called to request a progress update. The case note records that the Department Officer told the applicant that the Tribunal received his submissions in response and his change of representative form and confirmed that his phone number and email were correct. She further advised that the decision had not been made but when the case was finalised he would receive written notification in the post. Initially the applicant said he did not remember making that call and it would not have been him because he could not speak English. He then said he has received help from people who speak both Urdu and English as it would not have been possible to him to make a call.

17. At the very beginning of his cross examination the applicant said that he had not been able to find anyone to help him by reading the letter and decision to him.

18. He later qualified this and said he did not know anyone in Perth. He said he could not remember how much earlier he moved to Perth.  

19. He was shown CB 303 which shows that he moved to Perth in July 2013. He made the call to the Tribunal on 2 October 2011. He again said he had a friend help him make that call. When asked why he did not ask that friend to help him with the letter and the decision he said it was very difficult to find someone to who speaks English and Urdu to help every time.

20. The applicant is not a credible witness. He changed his story a number of times in an attempt to help his case which only served to highlight the inconsistences of his claims. It does not make sense that someone who goes to the effort of ringing the Tribunal, when he needs assistance to do so, to check on the progress of his case, then when he receives the decision does not seek anyone’s help.

21. Recently in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 Mortimer J made the following comments with respect to out of time applications at [62] and [63]

    As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

    The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.

22. In this case whilst the applicant has provided a written explanation for the delay he recanted some of that when giving oral evidence. He does not explain the three week delay from the date of receiving his final rejection letter and filing his application for judicial review. If the other aspects of his explanation were adequate this would not be enough to deny him an extension of time, particularly as his is a protection visa application.

23. The delay is lengthy and his explanation is inadequate given his lack of credibility.

24. Understandably, given the fact he is not legally represented, he does not address the issue of prejudice to the Minister if he is granted leave to proceed out of time.  This is not merely a formality.

Grounds for review

1. I must consider whether or not the applicant has an arguable case.

2. The application sets out the following grounds for review:

   a)The decision of the Tribunal:

   i)Is affected by error of law; and

   ii)Denied the applicant procedural fairness.

   b)I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.

3. The applicant filed written submissions where he responded to numerous paragraphs in the Tribunal’s decision.

4. The applicant raises issues which invite the Court to engage in an impermissible merits review and challenge the adverse credibility finding.[1]  That is an issue for the Tribunal and not the Court.[2]

   [1] Minister for Immigration v Wu Shan Liang (1996) CLR 259 at 272.

   [2] Ex Parte Durairajasingham (2000) 168 ALR 407.

5. The comments of the Full Court of the Federal Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 547 at 558 are relevant here. The Tribunal’s credibility findings must be based on rational grounds considering the relevant issues. The Tribunal has done this in the case. The Tribunal explains its reasons for finding that the applicant was not credible. I have made my own adverse credibility finding against the applicant.

6. The first respondent’s written submissions sets out the concerns the Tribunal had with the applicant’s evidence.  I will not repeat them here.

7. The applicant complains that the Tribunal should have made enquiries about the existence of Asara.  The Tribunal does not have a duty to make enquiries. It is for the applicant to make his case. The Tribunal did in fact make some enquires and put the results to the applicant.[3]

   [3] See CB 344 [51] and CB 349 [89].

8. The applicant was not denied procedural fairness.  The applicant was invited to attend the Tribunal hearing and did so.  Adverse information was put to him and he was given the opportunity to respond.

1. The applicant does not have an arguable case. I dismiss the application for leave to proceed out of time and will order the applicant to pay the respondent’s costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 16 May 2016