AZACM v Minister For Immigration and Anor and AZACN v Minister For Immigration and Anor

[2013] FCCA 918

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZACM v MINISTER FOR IMMIGRATION & ANOR and AZACN v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 918

Catchwords:
MIGRATION – Judicial review – application filed out of time – whether extension of time should be granted.

Legislation:
Migration Act 1958 (Cth), ss.476, 477

Cases cited:
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Craig v State of South Australia [1995] HCA 58
SZOGT v The Minister for Immigration & Anor (2010) FMCA 613
SZJRV v The Minister for Immigration and Citizenship (2008) FCA 298

Applicant: AZACM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 267 of 2012

Applicant: AZACN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 268 of 2012

Judgment of: Judge Lindsay

Hearing date: 21 March 2013

Date of Last Submission: 21 March 2013

Delivered at: Adelaide

Delivered on: 21 March 2013

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the FirstRespondent: Ms Rayment

Solicitors for the Respondent: Sparke Helmore Lawyers

ORDERS

1. The application for an extension of time within which to bring this application pursuant to s.477(2) of the Migration Act 1958 be refused.

2. The application pursuant to s.476 of the Migration Act 1958 is dismissed as incompetent.

3. The applicant do pay the respondent’s costs of and incidental to these proceedings fixed in the sum of FOUR THOUSAND DOLLARS ($4,000).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 267 of 2012

AZACM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

ADG 267 of 2012

AZACN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application by the applicants pursuant to s.476 of the Migration Act 1958 (“the Act”) for an order by way of judicial review in respect of decisions of the Tribunal to refuse their applications for protection visas.  I will refer to the applicants as Mr and Mrs Applicant.  Mrs Applicant’s decision is dated 9 March 2012.  Mr Applicant’s decision is dated 20 March 2012. 

2. In each case the decision of the Refugee Review Tribunal, was to affirm the decision of the delegate of the Minister in each case not to grant the applicants protection visas.  The decisions of the Tribunal are purported privative clause decisions and accordingly review will only lie where the decisions, or either of them, can be demonstrated to have been vitiated by jurisdictional error and that such is the case has been plain since the decision of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. As to what constitutes jurisdictional error, that is the subject of multiple decisions of the High Court; perhaps it is most usefully set out in the decision of Craig v State of South Australia [1995] HCA 58.

3. The applications for review simply do not address this need for jurisdictional error to be demonstrated.  It is perhaps unsurprising in the context of the applicants being unrepresented.  An issue arises anterior to that though and it is the circumstance that each of the applications were filed out of time and when I use that expression I mean that each of the applications are, on their face, incompetent because they are lodged more than 35 days after the date of the Tribunal decision.  Mrs Applicant’s application is 202 days out of time.  Mr Applicant’s application is 191 days out of time. 

4. Section 477 of the Act provides in subsection (1) that:

   (1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

5. Section 477 subsection (2) goes on to say:

   (2)The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:

   (a)an application for that order has been made in writing to the Federal Magistrates 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 Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

6. Section 477(2)(a) of the Act has been satisfied on account of boxes being ticked in the pro forma document and I suppose augmented now by the grounds identified in the application relating to why the time should be extended.

7. The grounds for extension of time are set out on page 2 of the application.  I will not read them out but they will be set out in the written version of these reasons.  The first ground is an assertion that each of the applicants was not aware of their legal rights in Australia, and that they did not access legal advice, I am paraphrasing it, that they were unaware that they could appeal to the Court.  The second talks about the threat to the lives of each of the applicants and then contains an assertion that they became aware that they could go to the Court as distinct from the Tribunal from information provided by persons whom they describe as community members.  The third ground for extension of time is really an importuning of the Court to grant the extension of time so as to help the applicants.

8. As per the requirement of subsection (2)(b) of s.477 as the written submissions of the Minister indicate in para 5, the factors to be considered include the following: the extent of the delay; the reasons for it; any prejudice to the respondent; the impact on the applicant if time is not extended; the interests of the public at large; any exercise of the Court’s discretion; and the merits of the substantive application. There are then references to authorities which I accept that that list is not an exhaustive list. The extent of the delay is frankly egregious; it is not a case where the application has been filed shortly after the expiry of the 35 day time limit. It is, in each case, approximately a six month period.

9. As to the reasons for the delay, we are not provided a great deal of information.  Really, the only matter that is amplified in the grounds and was also mentioned by the applicants today, was their ignorance of the time limit.  Ordinarily, it is useful in assessing the merits associated with the reasons advanced for there to be some explanation of the circumstances in which the applicants became aware of the time limits.  That usually serves to illumine the circumstances in which the time limit came to be expired.  All we have in relation to that though is the assertion in ground two of the Grounds of the Application for an extension of time that they came to know of the fact that they could go to Court from community members.  The community members are not identified and there is no indication as to why that information was only provided by community members approximately six months following the publication of the Tribunal’s decision.  So in short, the reasons for the delay are unclear.

10. In terms of any prejudice to the respondent, the view I take is that the prejudice must refer to something other than the fact that the application will be entertained by the Court.  Manifestly that is the inevitable outcome of the grant of the extension of time.  In the context of these kinds of applications it is unlikely to be a matter of significant in many cases.  I do not regard it as a significant matter here.  There are public interest matters which I will consider discretely in respect of the exercise of the discretion but I do not think they fall into the category of there being any prejudice to the respondent and I think in this matter, as in common with other matters of this kind, the prejudice to the respondent is unlikely to be significant in the exercise of the discretion. 

11. Similarly, the impact on the applicant if time is not extended inevitably will mean that the application to affirm the decision of the delegate will stand.  The application would not have been brought if the Tribunal decision were otherwise.  So in terms of that as a factor relevant to the exercise of the discretion, again, when the cases talk about that they must be talking about something other than the refusal of the application itself.  The nature of the jurisdiction is such that the reason why the Court is exercising a jurisdiction is that the outcome will be the refusal of the application for a protection visa.  That is self-evident and that factor, again, is unlikely to be a matter of significance here, although it really is bound up with a consideration of the merits of the substantive application.  In other words, if the extension of time is granted and the matter is agitated but agitating the application would be futile because the application is without merit and has no reasonable prospect of succeeding, then indirectly that is a matter that can be characterised as relevant to the impact on the applicant if the time is not extended.  So I would prefer to discuss that matter in the context of the merits of the substantive application.

12. The interest of the public at large, as Smith FM pointed out in a decision of SZOGT v The Minister for Immigration & Anor (2010) FMCA 613, a decision incidentally where His Honour was satisfied that there was – he having in fact identified the matter himself – a manifestly arguable ground of jurisdictional error associated with the decision of the Tribunal, he refused the extension of time and central to his determination was the matter referred to at para 27 of His Honour’s judgment.

    In my opinion, recognising the practical reasons discouraging him from exercising his right of judicial review, there is an overwhelming contrary consideration which prevents his delays both before and after commencing his present application being regarded as excusable in the interests of the administration of justice.  That consideration is the consideration pointed to in relation to powers to extend time to seek judicial review orders which was referred to by McHugh J in Re Commonwealth of Australia Ex parte Marks (2000)75 ALJR 470.  His Honour said –

    and then this is a passage set out from that case:

    Where an applicant seeks the issue of the constitutional prerogative writs, a further factor must be considered.  Those writs are directed at the acts or decisions of public bodies and officials and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

13. And his Honour goes on to conclude, at para 30:

    Weighing up the interests of the administration of justice in relation to the review of the present tribunal’s decision, in my opinion, there is a clear public interest in leaving undisturbed the decision made in 2002.

14. That was a case where the problems relating to time were even more egregious than here but, on the other hand, it was a case where His Honour identified a clearly arguable ground of jurisdictional error and, balancing those factors, His Honour regarded the public interest, that what he described as the “clear public interest in leaving undisturbed the decision”, as determinative. 

15. Before I turn to that consideration, I should address this issue of the ignorance of the time limit which is, perhaps to be more accurate it, it is really a claim of a lack of awareness of the availability of a remedy in this Court.  And the Minister’s legal representatives have provided me with a number of authorities that deal with that issue.  Flick J in SZJRV v The Minister for Immigration and Citizenship (2008) FCA 298 was dealing with an extension of time in which to appeal from a decision of this Court to the Federal Court, the decision of this Court being one that dismissed an application seeking to review a decision of the Refugee Review Tribunal.

16. The language of the relevant Federal Court Rule considered there is different to the language of 477 of the Migration Act.  The reference is to special reasons – that is one matter.  The other matter which rather militates against this case being particularly helpful in the disposition of this application is that the reference to questions relating to the significance of this factor, that is, ignorance of time limit, which essentially is no different from the claim for ignorance of the availability of the remedy, is very cursory.  Paragraph 5 of that judgment notes that:

    The explanation for delay provided by the applicant is simply that he was unaware of the 21 day period.

17. And His Honour goes on in para.6:

    Had consideration been confined simply to the short extension of time required, the discretion could well have been exercised favourably to the applicant.  The explanation provided is, with respect, not satisfactory.

18. And His Honour goes on:

    But as was recognised by the Full Court in the decision of Jess & Scott –

    His Honour is referring to a decision of Jess & Scott, referred to at para 4:

    a less persuasive explanation may be required when the extension required is for a comparatively short period of time.

19. Another decision that is referred to by the Minister is that of the decision of Smith FM which I have referred to for other reasons earlier.  It is the decision of SZOGT where, after summarising the applicant’s reasons for the application being filed out of time in that case, at [18], the learned Federal Magistrate concludes the paragraph by saying this:

    However, ignorance of the niceties of law is not in itself an acceptable excuse for inordinate delay in challenging administrative actions.

20. The decision of Cowdroy J, sitting as a Court of Appeal from this Court in relation to a decision to affirm the decision of the Refugee Review Tribunal in that case, said at para.33:

    It is not acceptable that the applicants failed to make proper inquiries to determine if their appeal was required to be lodged.

21. Those decisions are useful, as at least indicating an unwillingness on the part of the Courts to accept a claim for ignorance of either the existence of a time limit or the availability of remedy in a Court as being enough in itself.  And that must be especially the case, when as here, there is so little provided in terms of fleshing out of the circumstances in which the knowledge of the availability of the remedy suddenly became available approximately six months following the Tribunal’s determination.

22. The other matter relevant to the exercise of the discretion is the merit of the application itself which we look at to determine whether the granting of the application for extension of time would be futile, would have no utility, because the application is bound to fail.  In terms of grounds of application, there are two grounds identified on page 3 of the document.  The first uses the expression “jurisdictional error” but is really an invitation to the Court to reconsider the Tribunal’s factual findings in relation to certain proof that was adduced in support of the contention that the applicants were at risk of persecution for Convention reasons if they were returned to India and Punjab in particular, on account of their Sikh religion.

23. There is a specific reference to the Tribunal’s failure to consider the proof provided by the applicants in terms of letters which are contended clearly show that the harm caused to Mr and Mrs Applicant was because of their religion.  The reference there is to letters that were produced to the Tribunal but which were not produced to the delegate or of any earlier stage of the promotion of the application for a protection visa from a group called DSS, which the country information revealed was a faction, for want of a better expression, within the Sikh religion itself.

24. And the migration agent submitted, on behalf of the applicants, in December 2011 what were said to be two threatening letters received by the applicants, from that group.  The Tribunal went on to consider those letters in its Reasons, in particular at [95] and [96] of the Consideration of Mr Applicant’s Claim, and at [121] to [128] of his Claim.   

25. It is not a sustainable argument that the letters were not considered.  A reading of the Tribunal’s reasons in each case indicates that they were considered and rejected.  They were rejected as not being credible, and extensive reasons were provided by the Tribunal in each case as to why no reliance was placed upon the letters themselves, including, but not limited to, the late disclosure of the letters and including, but not limited to, the inability of both Mr and Mrs Applicant to provide information regarding the content of the threatening letters and the Tribunal’s finding that the applicants’ answers were evasive and not credible in relation to the matter of the letters. 

26. That is altogether apart from the fact that the contention is not one that in my view is capable of amounting to a jurisdictional error. 

27. The other ground promoted in the application is that the Tribunal’s finding in the Tribunal’s statement that it had had regard to the applicant’s medical condition.  That is to be found at paragraph 131 of the Reasons in relation to Mr Applicant.

28. That ground, as Ms Rayment has pointed out, is only capable of being promoted in relation to Mr Applicant.  Mrs Applicant had no claim in relation to a medical condition.  The contention is that the Tribunal’s assessment of that claim was made without there being any medical evidence in relation to the contention or any contribution from a qualified medical practitioner in relation to the claims before the conclusion was reached by the Tribunal that it was inappropriate to place any weight on the claimed medical condition.  But it was for the applicant to promote his own case.

29. If it had been relevant or germane for there to be medical information provided in relation to this matter, it was open to him to provide it.  More than that, though, it is not clear what relevance the existence of the medical condition has to the identification of reasonable apprehension of persecution for a Convention reason on account of religion. 

30. It may be that somewhere within the contention is an attempt to provide an explanation, for example, as to why there had been no report to the police of threatening letters or an explanation of other unsatisfactory aspects of the way that the applicant – Mr Applicant – has promoted his claims – in other words, an invitation to the Tribunal to see the unsatisfactory aspects of the conduct of the claim as being partially explained by depression and dementia and suicidal ideation.  I am speculating about that, but it remains possible that that is the reason the matter was advanced.  But we are a long way, in my view, from the identification of anything in that which would constitute a jurisdictional error, even though Ground 2 purports to describe it as such. 

31. Leaving aside the specific grounds claimed, and scrutinising the Tribunal’s decision for the presence of any matters that might not have been articulated by the applicants as grounds of jurisdictional error but ought to have been taken into account by the Tribunal in any event in any proper discharge of its duties to conduct the review, I am unable to identify any other such matters.  On the contrary, the Tribunal’s findings in relation to the credibility of a range of matters relied upon by the applicants was comprehensive, and if I may say so, damning.

32. That is the first difficulty.  The other difficulty is that the contention that the applicants were at risk of persecution by members of this Sikh organisation was not sustained by any of the country information that was either put before the Tribunal or identified by the Tribunal itself.  In particular, returning to the matters relating to credibility, it seems to me very careful consideration was given to the specific claims of the applicants as to having been attacked twice in India and to the fact that the attacks were religiously motivated, although I should note there was a late claim for a third incident of attack.

1. All of the circumstances relating to that, it seems to me, were given careful consideration by the Tribunal.  I am not satisfied that either in respect of the Grounds of Application which are set out in the application or anything that has been put to me today on behalf of the applicants or anything that is apparent from my own scrutiny of the Tribunal’s decision that there is any argument that can reasonably be promoted in support of a contention that the Tribunal’s decision was vitiated by jurisdictional error.

2. Putting it another way, there is, in my view, an inevitability associated with the failure of the claim, should the extension of time be granted, and that, it seems to me, is a very relevant aspect of the consideration of the application for the extension of time in this case.  It, in my view, is the most important aspect.  It is probably not appropriate to rank the discrete matters that go into the exercise of the discretion, but I think I can indicate that that is the matter that is the most relevant in terms of the various criteria to be considered for the application for the grant of the extension of time; the length of the delay was another significant matter.

3. In all of the circumstances, I am not satisfied that it is in the interests of the administration of justice to make an order extending the 35 day time period provided for in section 477(1) of the Migration Act. In those circumstances, the application pursuant to s.476 of the Migration Act is dismissed as incompetent.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Lindsay

Associate: 

Date:  24 July 2013