AYP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCCA 3063
•23 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYP18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2019] FCCA 3063 |
| Catchwords: PRACTICE & PROCEDURE – Whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.417, 477 |
| Cases cited: Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344 |
| Applicant: | AYP18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 531 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 23 October 2019 |
| Date of Last Submission: | 23 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Rajendra Chaudhry (Chaudhry Legal) |
| Solicitors for the Respondents: | Tom Hillyard (Sparke Helmore) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 531 of 2018
| AYP18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) to seek judicial review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), dated 3 October 2013. The applicant filed the application for judicial review on 27 February 2018, some 1570 days after the expiration of the 35 day period from the date of the Tribunal’s decision, as required by s.477(1) of the Act.
There is power under s.477(2) of the Act to extend time to an applicant beyond that 35 day period where the Court finds that it is necessary in the interests of justice to do so.
The applicant was represented by his solicitor, Mr Chaudhry, before the Court this morning. Mr Chaudhry read an affidavit of the applicant, affirmed 22 February 2018 and filed on 27 February 2018, in relation to the applicant’s explanation for his delay.
That explanation is encapsulated in the following paragraphs of the affidavit:
“5. I spoke to many family and friends and they all advised me to appeal the Tribunal decision and to make every effort to stay in Australia as they agreed with my situation that I would be subjected to serious harm if returned to Fiji…
8. I know that there has been quite some time since I should have filed my application with Court but for the above mentioned reasons I could not file my papers on time. Not having any knowledge or appreciation of Australian migration law did not help my case. Many acquaintances tried to get me to lodge my own papers with Court but I decided against it on the view that even if it took me a while longer and cost me some money, I would like to have my case presented to Court properly and premised on my belief that I had a valid claim for protection.
9. If an extension of time were not granted I would not be able to properly lay my case before the Court and if this led me to return to Fiji the prejudice to me would be irreparable.
10. I understand the Government’s policy of having migration matters dealt with expediently and I plead with the Minister to please allow me to present my case in Court and let the Court deal with my application.”
Mr Chaudhry did not read the remainder of the affidavit.
In his application for an extension of time, the applicant identified the following grounds:
“1. The Applicant believes that he has a strong for argument before the Court and that it would be contrary to the administration of justice if an extension of time was not allowed.
2. The Applicant submits that the reasons for the delay was fear and a lack of funds as well as a lack of guidances from family and friends with respect to appealing the Tribunal decision.
3. The Applicant submits that Fiji is still very much in the throes of dictatorship and his return will expose him to serious harm and for this reason he seeks protection from Australia.”
The principles relevant to the consideration of whether to grant or dismiss an application for an extension of time are well settled. Those principles are the length of the delay, the explanation for the delay, the presence or absence of prejudice to the respondent, and the prospects of success of establishing jurisdictional error in the Tribunal’s decision.
In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176 (“Hunter Valley”); (1984) 3 FCR 344; SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J). In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], Mortimer J stated relevant principles that were approved by the Full Court of the Federal Court of Australia in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [21] per Tracey, Perry and Charlesworth JJ, as follows:
“63. 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.”
The first respondent does not suggest that they would suffer any substantial prejudice if time was extended, beyond the fact that a delay of some four years may have an effect on the preparation of the case. However, in any event, it is also well established that the mere absence of prejudice is not sufficient by itself to grant the applicant an extension of time (see Hunter Valley at [21] per Wilcox J).
It is also well established that the longer the delay, the more persuasive the explanation needs to be (see Jess, M.P. v. Scott, R.T. & Ors (1986) 12 FCR 187 at 195 per Lockhart, Sheppard & Burchett JJ).
The Court must also have regard to the significant public interest in the finality of administrative decisions (see Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491, (“Ex Parte Marks”) at [15]-[17] per McHugh J).
Financial constraints are not an acceptable explanation for a delay in filing a notice of appeal. In QAAHMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9, the delay was 3 months and the only explanation offered was the appellant’s failure to pay a solicitors’ fees. The Full Court of the Federal Court of Australia (Tamberlin, Kiefel and Weinberg JJ) said at [7]:
“…The only explanation for the delay in taking any step in this Court between that date and 14 May 2003 is the appellant’s failure to pay his solicitors’ fees. Without more, such a situation would not provide a reason for exempting a party from the application of the rules prescribing time limits. It cannot therefore provide a sufficient explanation for the continuing delay on the part of an appellant for filing an application for leave to appeal.”
In Ex parte Marks, McHugh J found it difficult to see how a person who, with the knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or an official had brought about the delay. McHugh J stated at [17]:
“An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief.”
In this case, the applicant, on 31 October 2013, shortly after the Tribunal’s decision, applied to the Minister under s.417 of the Act for Ministerial intervention in relation to the Tribunal’s refusal for granting a protection visa. On 22 April 2014, the applicant was notified that that application had been unsuccessful. Again, it is well established that an applicant’s conduct in seeking Ministerial intervention under s.417 of the Act is indicative of a decision by an applicant to abandon a course that would seek to challenge the decision of the Tribunal on grounds that otherwise may have been available to him under the Act (see M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21).
In the circumstances, the delay by the applicant in seeking judicial review of the Tribunal’s decision is entirely unsatisfactory. The applicant relies on a combination of an ignorance of the law and financial difficulties, neither of which can adequately explain a delay of that time.
Nevertheless, in considering whether or not time should be extended, I do have regard to the prospects of success of the applicant’s grounds for judicial review. Mr Chaudhry identified those grounds as follows:
“1. The Tribunal erred in failing to consider significant factors or unduly limiting what can be considered as relevant factors, including but not limited to the Applicant's links to Colonel Roko Ului Mara.
3. The Tribunal failed to take into account relevant matters relating to persecution of ordinary citizens who opposed the Bainimarama regime at the relevant time.
5. The Tribunal erred in taking into account country information and not taking into account more recent and/or relevant information as provided by the Applicant.”
The applicant’s solicitor contended that the Tribunal had failed to properly consider the applicant’s claim to fear harm from the authorities in Fiji, in circumstances where his wife was visited three weeks after the applicant had departed Fiji, following a visit by the military to the applicant one week after Colonel Mara had fled Fiji.
The Tribunal stated as follows:
“68. The Tribunal accepts that between 2010 and approximately May 2011 the applicant worked for Lau Trading, which included working for Col Mara, a director of that company. The Tribunal accepts that the work included travelling with Col Mara throughout the Fijian islands during that time. The Tribunal also accepts that the applicant, according to the evidence provided by him at the hearing, left Lau Trading because he had an offer from Horizon Shipping and it was a better job than the job he had with Lau Trading. The Tribunal accepts that, as described by the applicant at the hearing, a Fijian military officer came to speak to him approximately a week after Col Mara fled Fiji, that the officer questioned the applicant but did not detain him and the officer told the applicant he would be contacted if more information was needed.
69. At the hearing, the applicant stated that approximately 3 weeks after he came to Australia in February 2012, a military officer came to his family home in Fiji and asked after him. The Tribunal noted that he had made no reference to this in the information provided with his protection visa application or in the statement provided to the Tribunal. The representative stated that the applicant had told the delegate about his wife being questioned during that interview.
70. The Tribunal has listened to the interview audio recording in light of the submission provided by the representative after the hearing and accepts that during the hearing the applicant stated words to the effect that the Fijian government were seeking information from the applicant's wife. However, the Tribunal finds this to be a very generalised reference. Accordingly, the Tribunal accepts that a government official military officer may have come to the applicant's family home asking after him a few weeks after he came to Australia but does not accept that this questioning occurred in a way that was threatening or intimidating or otherwise would suggest the applicant was at risk of harm as a result of that questioning. The Tribunal finds that if that had been the case the applicant would have specifically referred to this incident in more detail during the interview or at least referred to it in some way in his statement to the Tribunal.”
(Emphasis added)
It appears to be clear that the Tribunal understood and considered this claim by the applicant. However, as the Tribunal stated, it found the claim to be a generalised reference. It accepted that a government official may have come to the applicant’s family a few weeks after he came to Australia but did not accept that the questioning occurred in a way that was threatening or intimidating or that would otherwise suggest the applicant was at risk of harm as a result of that questioning. The Tribunal based that finding on the applicant’s failure to specifically refer to this incident in more detail during the interview or, at least, in some way in his statement to the Tribunal.
Ultimately, the Tribunal accepted that one further visit by the Fijian authorities to the applicant’s home a few weeks after he came to Australia indicated that the Fijian authorities at that time sought to find out where the applicant was. However, the Tribunal did not accept that this one visit with the applicant or his family, in the absence of any further contact by Fijian authorities, shows that he is of any interest to the Fijian authorities in relation to his association with Colonel Mara.
The Tribunal accepted that the applicant had worked for Colonel Mara and that those circumstances may lead him to be imputed with a political opinion in support of Colonel Mara. However, in light of country information before it, the Tribunal found that the Fijian Government and security forces do not target for harm those persons who merely support opposition figures such as Colonel Mara.
In such circumstances, the Tribunal did not accept that the applicant, whether imputed with a political opinion or actually holding such a political opinion in support of Colonel Mara, faces a real chance of harm at the hands of the Fijian Government or security forces as a result.
The Tribunal appears to have dealt comprehensively with the applicant’s claim to fear harm as a result of his links with Colonel Mara prior to Colonel Mara fleeing Fiji. The Tribunal also appears to have considered the applicant’s claim to fear harm because his wife was visited three weeks after he came to Australia.
The Tribunal appears to have given cogent and probative reasons for its finding that this conduct did not involve threatening or intimidating behaviour on the part of the military towards the applicant and essentially found that the applicant’s fear of harm for that reason was not well founded. The applicant’s solicitor’s submission that the way in which the Tribunal dealt with that claim gave rise to jurisdictional error on the part of the Tribunal for a failure to give proper and due consideration to that claim would not appear to be made out.
In relation to the applicant’s claim in Ground 3 that the Tribunal failed to take into account relevant matters relating to the persecution of ordinary citizens who opposed the Bainimarama Regime, at the relevant time, the applicant’s solicitor appeared to contend that the Tribunal had failed to give due weight to country information before it, to that effect.
Ground 5 asserts that the Tribunal failed to consider country information given to it by the applicant. To the extent that the grounds overlap, the Tribunal states that it considered the country information given by, and on behalf of, the applicant to the Department and the Tribunal and referred to in the Delegate’s decision.
The Tribunal then identified with great specificity the country information to which it had regard, which included country information provided to it by the applicant. In relation to that information in particular, the Tribunal stated:
“There is information available referring to family members and associates of Tevita Mara being subject to adverse attention from Fijian security forces following Mara’s departure from Fiji. In its 2011 Country Report on Human Rights Practices, the US Department of State made reference to the treatment of members of Mara’s family by Fijian security forces following the flight to Tonga.”
The Tribunal then quoted from that report:
“…following the flight to Tonga of the former Third Fiji Infantry Regiment commander, Lieutenant Colonel Tevita Mara, the military and police arbitrarily detained and questioned his wife, sisters, and other family members. They were released without charge. (US Department of State 2012, Country Reports on Human Rights Practices 2011 - Fiji, 24 May, Section 1.d < Accessed 25 May 2012.)”
Ultimately, as referred to above, the Tribunal found that based on the country information before it, the Fijian government and security forces did not target for harm those persons who merely supported Colonel Mara. Whilst accepting that the applicant may be imputed with a political opinion, or even hold a political opinion for support of Colonel Mara, the Tribunal found that the applicant does not face a real chance of harm at the hands of the Fijian government or security forces as a result.
It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
The Tribunal’s findings and its reliance on the country information would not seem to indicate any jurisdictional error on the part of the Tribunal.
The Tribunal’s findings would appear to be open to it on the evidence and material before it. The findings are based on rational grounds and arrived at after considering those factors that were logically probative of the issues before the Tribunal. In such circumstances, the findings were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry and Bromwich JJ).
In the circumstances, whilst I make no final finding as to whether or not the Tribunal’s decision is affected by jurisdictional error, none is apparent on the face of the Tribunal’s decision record and none has been identified by the applicant’s solicitor this morning.
In considering whether it is in the interests of justice that time be extended to the applicant I have regard to the fact that the applicant’s substantive application for judicial review of the Tribunal’s decision would appear to have no prospect of success or at least such prospects that an extension of time is likely to be an exercise in futility.
I do accept that there is prejudice to the applicant in refusing to extent time to him to seek judicial review of the Tribunal’s decision. However, in balancing the interests of both parties and the overall interests of justice, I also have regard to the significant public interest in the finality of administrative decisions (see: Ex Parte Marks at [17] per McHugh J).
In all the circumstances, but with particular emphasis on the unsatisfactory nature of the applicant’s explanation for his delay and the insufficient prospects of success of the applicant’s application for judicial review, I am not satisfied that it is necessary in the interests of justice to extend time to the applicant.
Accordingly, the applicant’s application for an extension of time should be refused with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Deputy Associate:
Date: 29 October 2019
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