AZAFS v Minister for Immigration

[2015] FCCA 2523

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAFS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2523

Catchwords:
MIGRATION – Application for judicial review – application 14 months out of time – consideration of prejudice.

Legislation:

Migration Act 1958 (Cth), s.477(1), (2)

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198
Applicant M29 of 2001 v Minister for Immigration and Multicultural Affairs [2003] FCA 1266
M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Minister for Immigration and Ethnics Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: AZAFS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 466 of 2014

Judgment of: Judge Harland

Hearing date: 12 August 2015

Date of Last Submission: 12 August 2015

Delivered at: Melbourne

Delivered on: 18 September 2015

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondents: Mr Tredrea

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application for extension of time is dismissed.

2. That the second respondent’s name be amended to the Administrative Appeals Tribunal.

3. That the applicant pay the first respondent’s costs in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 466 of 2014

AZAFS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a Refugee Review Tribunal decision affirming a Delegate’s decision to refuse the applicant’s application for a protection visa.  The applicant is a citizen of Afghanistan and arrived in Australia on 20 May 2012.  He applied for a protection visa on 26 August 2012.  The Delegate issued a decision on 8 July 2013 refusing the applicant’s application.  The applicant then applied for a review of that decision to the Refugee Review Tribunal, as it then was. 

2. The applicant had the assistance of a registered migration agent who prepared detailed submissions appearing at pages 190 to 260 of the Court Book, prior to the hearing before the Tribunal.  Those submissions include detailed extracts of country information.  The applicant appeared with the assistance of his registered migration agent at the Tribunal hearing.  The Tribunal’s decision appears at Court Book 264 to 285.  The Tribunal made credibility findings against the applicant and discussed the inconsistencies in his version of events and the implausibility of his claims.  The Tribunal decision also discusses country information at length, including material provided by his migration agent. 

3. The Tribunal handed down its decision on 18 September 2013. Section 477(1) of the Migration Act 1958 (Cth) requires an applicant seeking a judicial review to file that application within 35 days of the decision.

4. Section 477(2) of the Migration Act states:

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

   (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.

5. In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 Judge Foster considered the requirements for an extension of time under s.477 of the Migration Act and said the following at [47]:

   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.

6. The applicant, with the assistance of his migration agent, lodged a request for Ministerial intervention on 12 November 2013.  That is outside of the time limit for filing an application for judicial review.  That application appears at Court Book pages 286 to 296.  At the hearing the applicant claims that he had no one to assist him and did not know about the time limits.  That is plainly not true as his application was prepared by a migration agent on his behalf.

7. The application for Ministerial intervention was refused on 5 June 2014.  The applicant did not file the application with this Court until 16 December 2014, some six months after the notification that his application for Ministerial intervention had been refused.  The application was prepared by a lawyer acting on his behalf.  He had representation until 24 July 2015.  The applicant did not file any written submissions in support of his claim.  The application for review says, with respect to the extension of time application, that the decision is affected by jurisdictional error and that the application was delayed by the bringing and determination of an application under s.417 and s.48B of the Migration Act.  It further states that there is no prejudice if that extension is granted.

8. The applicant filed an affidavit with the application which says that the application for an extension of time should be granted in the interests of the administration of justice because, if it is not granted, then the applicant will be deported based on a flawed decision of the Tribunal.  It also says that it is in the interests of the public at large to grant the extension.  The application and affidavit is absolutely silent with respect to the six month delay after the application for Ministerial intervention was refused.  This is significant.

9. The Minister relies on a decision of Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198. In that decision Goldberg J held that pursuing an application for ministerial intervention was indicative of a decision to abandon pursuing the legal avenue for judicial review. He stated that deciding to pursue that course of action does not constitute a special circumstance excusing the delay and justifying an extension of time. Also see Applicant M29 of 2001 v Minister for Immigration and Multicultural Affairs [2003] FCA 1266; M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520.

10. Significantly, in the case before me the applicant was represented both before the Tribunal with respect to the application for Ministerial intervention and in preparing the application before this Court.  There is no explanation whatsoever for the further six month delay from 5 June 2014 to 16 December 2014, even if one was to accept his explanation for delay up and to that point.  In my view, an application for Ministerial intervention does not adequately explain a delay in pursuing judicial review in this Court. 

11. The applicant says that there is no prejudice to the Minister in granting the extension of time.  The Minister refutes this and says that, whilst he has been unable to find a migration decision on this point, it was principal of prejudice in the context of public law and, in that respect, relies on comments by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at paragraph 349 where he refers to “The mere absence of prejudice is not enough to justify granting an extension… In this context public considerations often intrude”.

12. In this respect, the Minister submits that if an extension of time was to be granted in this case where the delay is substantial and there is no explanation for the delay, or no adequate explanation for the delay, then there could be a real impact on the proper administration of justice in migration cases generally. As Mr Tredrea submitted orally, that if an extension of time was granted in this case, then what incentive would there be for other applicants to comply with the time limits prescribed by the Migration Act? This is because in some cases, applicants are on bridging visas that allow them to work or study.  In other cases, applicants are able to continue to live in Australia whilst their applications are being determined.

13. There is considerable merit in that submission.  It would also have an impact on the applications before the Court, no doubt with further applications for extensions of time increasing the Court’s workload which is already stretched.

14. The comments of McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491. At paragraph 13 he said:

    “In Gallo v Dawson (1990) 93 ALR 479 I said that the grant of an extension of time under O 60 r 6 is not automatic. This is as true of an application for constitutional relief under s 75(v) as it is in respect of an appeal. I also said that, when the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. A similar inquiry must be made when the proceeding is for an extension of time in which to commence s 75(v) proceedings to quash an act, decision or judgment. A ‘case would need to be exceptional’ before the time for commencing proceedings was enlarged by many months. The explanation for such a delay is also a relevant consideration.”

15. There are no such exceptional circumstances in this case. The delay in the case before McHugh J was 17 months.  The delay in this case is similar being 14 months.

16. McHugh J’s comments at paragraph 15 of the same decision is also relevant here:

    “An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.”

17. The comments about the public interest are particularly relevant here. It is necessary to consider prejudice not just between these parties but in the broader public interest sense. Contrary to the applicant’s submission which was not expanded on at the hearing, I find that it is not in the public interest to grant an extension of time in this case. Relevant to this consideration is the lengthy delay and lack of adequate explanation for it as well as the lack of merit in the substantive application.

18. The principles that apply to an application for extension of time are clear.  One of the relevant considerations is the merits of the primary application.  The applicant relies on two grounds in the application prepared by his lawyer.  The first ground complains that the Tribunal did not take into account that the Ministry of Defence in Kabul had previously been infiltrated.  However, as the Minister points out, that is explicitly dealt with in paragraph 119 of the Tribunal’s decision.

19. The applicant seems to complain about the country information.  However, it is clear that the decision referred to country information provided by the applicant’s migration agent and other country information which the Tribunal is perfectly entitled to do.  The Tribunal is also the finder of fact and was entitled to make the credibility findings that it did.  The second ground complains that the Tribunal made a jurisdictional error by taking into account irrelevant information and refers to the Tribunal relying on personal experience.  Whilst there is reference in the decision to personal experience of the Tribunal member, a fair reading of the decision makes it clear that that comment was not the basis of the Tribunal’s decision but rather it was the assessments of the plausibility of the applicant’s own evidence, and the country information.

20. At the hearing, the applicant was unrepresented, and had the assistance of a friend.  He repeatedly sought to argue the merits of his application and sought to say that he did not know how he could make the Tribunal and the Court believe him.  What he was essentially inviting the Court to do was to impermissibly carry out a merits review.  The Minister also points out in his written submissions that the applicant does not seek to challenge the credibility findings and the weight placed on those findings.  The issue of the weight given to his claims is a matter for the Tribunal and not the Court.  It is part of the Tribunal’s fact finding function, in this regard see: Minister for Immigration and Ethnics Affairs v Wu Shan Liang (1996) 185 CLR 259.

21. The application does not disclose any reasonably arguable claims with respect to the Tribunal’s decision.  Even if it did, the lack of adequate explanation for the delay for the first eight months and the complete absence of explanation for the delay of the next six months is such that an extension of time should not be granted. 

22. At several points during the hearing the applicant said that no one had helped him, which is clearly incorrect based on the documents in the Court Book. 

23. The applicant has not provided a satisfactory explanation for his delay. For a significant portion of that period he provides no explanation at all. I am not satisfied that there is no prejudice to the Minister in granting the extension of time. It is not just a matter of considering justice between the parties. The broader public policy considerations must also be considered. I dismiss the applicant’s application for an extension of time.

Costs

1. Counsel for the Minister seeks costs in accordance with the scale for an interlocutory argument, in which an extension of time is sought, is in the sum of $3,416 in accordance with the scale.  The applicant says he has no means of paying a costs order as he is not allowed to work, and he has not been helped by any organisations. The inability to pay a costs order is not sufficient reason for a costs order not to be made.  In this jurisdiction costs generally follow the event.  There was no merit in the application put before the Court.  I make the orders appearing at the beginning of these reasons.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date: 18 September 2015