Bashar v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1013
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bashar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1013
File number: MLG 3885 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 9 November 2023 Catchwords: MIGRATION – application for extension of time for judicial review of delegate’s decision not to grant applicants Business Skills (Provisional) (class EB) Business Innovation and Investment (Provisional) (subclass 188) visas – whether applicants have provided sufficient explanation for the delay – merits of proposed judicial review application asserting that delegate took into account an irrelevant consideration and that decision was irrational or illogical – application for an extension of time dismissed. Legislation: Migration Act 1958 (Cth) s 477 Cases cited: Attorney-General (NSW) v Quinn (1990) 170 CLR 1
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 31 October 2023 Place: Perth Counsel for the Applicants: Mr A Koya Solicitor for the Applicants: Koya & Co Barristers & Solicitors Counsel for the Respondent: Ms O Cameron Solicitor for the Respondent: Australian Government Solicitor ORDERS
MLG 3885 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMMAD ABUL BASHAR
First Applicant
JAHANARA PARVEEN
Second Applicant
ZAHIN JAWAD (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
9 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application for an extension of time is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicants seek an extension of time for judicial review of a decision made by a delegate of the Minister, refusing to grant them Business Skills (Provisional) (class EB) Business Innovation and Investment (Provisional) (subclass 188) visas (visa).
The applicants were over seven months late in filing their judicial review application. Their main complaint about the delegate’s decision relates to the delegate’s use of a Bangladeshi website to verify their claimed ownership of property, and the delegate’s reliance on the information in that website, which the applicants say is unreliable, to find that the first applicant gave, or caused to be given, information to an officer of the Department which was false or misleading at the time it was given. Based on this finding, the delegate found that the first applicant did not meet Public Interest Criterion (PIC) 4020.
For the reasons explained below, I have decided that it is not in the interests of the administration of justice to grant the applicants an extension of time in this matter. The application is therefore dismissed.
VISA APPLICATION AND DECISION OF THE DELEGATE
The applicants applied for the visa on 15 May 2017. The first applicant is the primary visa applicant, the second applicant is his wife and the third and fourth applicants are the children of the first and second applicants. The applicants were resident in Bangladesh at the time of their visa application and were assisted by a migration agent.
In the course of considering the visa application, the Minister’s Department wrote to the applicants to request more information. One such request was sent on 6 October 2017 and, amongst other things, requested evidence of the applicants’ assets.
The applicants provided documents in relation to three real properties located in Bangladesh, which I will refer to as Property No 1, Property No 2 and Property No 3 as those labels were applied in the delegate’s decision.
On 23 February 2018 the Department wrote to the applicants inviting them to comment on adverse information. In this invitation, the Department wrote:
The Department interrogated the Capital Development Authority of Bangladesh’s (RAJUK; official website: ‘Web Enabled Plot based Land Record System’ (WPLRS) at to verify your claimed ownership of the above listed properties. RAJUK’s database lists the current plot owners at Uttara Residential Model Town and RAJUK Purbachal New Town.
The invitation indicated that the database recorded the owner of Property No 1 as a person other than the applicants and indicated that Property 2 and Property 3 were not listed in RAJUK’s database. The invitation then explained:
Based on the above information, I reasonably suspect that you have given or caused to be given to an officer, information that is false or misleading at the time that it was given. The false or misleading information is in a material particular to clause 188.222 as it was provided as evidence of the value of your net assets for purposes of determining points claimable under the business innovation and investment points test. The false or misleading information is also in a material particular to clause 188.226 as it was provided as evidence of the value of your net assets for purposes of determining the net asset threshold of AUD800,000 at the time of invitation. Consequently, you may not satisfy public interest criterion 4020 and therefore you may not meet subclause 188.213(1) of Schedule 2 to the Regulations for the grant of the visa.
The applicants were given 28 days to respond to this information.
The applicants responded to the invitation on 25 March 2018. In his response, the first applicant explained how the applicants acquired the land and explained that when RAJUK programmed the website, RAJUK put in the original owner’s name and then the applicants purchased the land from the original owner and became owners of the land. The first applicant explained that there are two reasons why the original owner remained listed on the RAJUK website:
(a)in a government or semi-government office things are not done promptly and sometimes are not done at all unless somebody applies and pushes for it; and
(b)the settlement and registry system of land is not computer-based or and does not update automatically in the name database.
The first applicant explained that he applied to the chairman of RAJUK on 27 February 2018 and submitted evidence and requested that they update their database. He provided information that the RAJUK website now shows that Property No 1 is owned by the second applicant and Property No 2 and Property No 3 are owned by the first applicant.
On 6 April 2018 a delegate of the Minster refused to grant visas to the applicants. The delegate found that the first applicant did not meet the criteria in cl 188.213 in Schedule 2 to the Regulations, because the first applicant did not satisfy Public Interest Criterion (PIC) 4020. The delegate considered that PIC 4020 was not satisfied because there was evidence before the Minister that the applicants had provided, or caused to be provided, a bogus document or false or misleading information in relation to the visa application. The delegate observed that the applicants had provided valuation reports and evidence of ownership for Property No 1, Property No 2 and Property No 3 for the purposes of meeting the criteria in cl 188.222 and 188.226, which both require proof of assets. The delegate referred to the information contained in the invitation to comment on adverse information, which was the basis of the delegate’s reasonable suspicion that the applicants had given or caused to be given to an officer information that was false or misleading at the time it was given. The delegate also referred to the first applicant’s response provided on 25 March 2018 and continued:
I have given regard to the applicant’s response and find that the applicant has given or caused to be given to an officer, information that is false or misleading at the time that it was given. My reasons are set out below:
•I have re-visited RAJUK’s website and conducted another search for the three properties. While the applicant and his spouse are now listed as owners on the ‘owner’s list’, the details available on the website for each claimed property are incomplete. When the ‘Details’ link to the right of the plot number is clicked the viewer is taken to the website’s home page. This is not the case with other properties in the same sector. When I clicked ‘Details’ for other properties in the same sector, the website provided further plot and ownership details such as the owner’s photograph, name, TIN/BIN, present address, parents’ names, National ID (where these details have been provided). However, these details are not available for the three properties claimed by the applicants. The lack of essential details that are available for other properties in the same sector casts serious doubts over the veracity of the applicant’s ownership claims in regards to the three claimed properties. Furthermore, the applicant argued in his statement that RAJUK’s website continued to list the properties’ previous owners’ after the applicants had purchased the properties. However, as was pointed out to the applicant in the invitation to comment, properties 2 and 3 were not listed in RAJUK’s database when I conducted an initial search in RAJUK’s database. Therefore, the ‘previous owners’ of properties 2 and 3 could not have been recorded on the authority’s website. Based on the above findings, I find that the applicant has provided implausible explanations with regard to his claimed property ownership. As a result, I am not satisfied that the applicant and his spouse are the rightful owners of the three claimed properties.
•The applicant provided three letters that he and his spouse purportedly sent to RAJUK to request the authority to update their website to reflect the applicants’ ownership of the claimed properties. However, the applicant provided no evidence that the authority had acknowledged the request and confirmed the change in ownership. As a result, I am not satisfied that the applicant and his spouse are the rightful owners of the three claimed properties.
The delegate found that the first applicant did not meet PIC 4020(1) and there was no information that indicated he was seeking a waiver of PIC 4020. The second, third and fourth applicants were refused a visa because they were not members of the same family unit of a person who holds a subclass 188 visa.
EXTENSION OF TIME APPLICATION
Proceeding before the Court
The applicants did not have any right of merits review available to them in relation to the delegate’s decision. Pursuant to s 477(1) of the Migration Act 1958 (Cth) (Migration Act), any application for judicial review was required to be filed within 35 days of the date of the delegate’s decision. This means that in the present case, the application for judicial review was due to be filed by 11 May 2018. The applicants filed an application for an extension of time to seek judicial review of the delegate’s decision on 20 December 2018.
The applicants advanced three grounds in relation to their application for an extension of time. Those grounds are (particulars omitted):
1.All the Applicants were and still are overseas, and it was difficult for them to contact with their Migration Agent in Australia to discuss and decide the relevant issues on time.
2.The Applicants have an arguable case.
3.The impugned decision if not quashed has serious consequences for the credibility and future of all the Applicants.
The first applicant also deposed an affidavit which, in part, provided an explanation for the delay. The first applicant’s affidavit filed on 20 December 2018 was treated as read at the hearing subject to the resolution of an objection to a legal opinion set out at Exhibit A to the affidavit.
The applicant also tendered an expert report on the day of the hearing, which is subject to an objection by the Minister. I address the objection below.
The other evidence before the Court comprised the court book and a supplementary court book both filed by the Minister.
Resolution of objections to evidence
Exhibit A to the affidavit of the first applicant filed on 20 December 2018 is a legal opinion of Shalah Uddin Lasker who is described as an advocate of the Supreme Court of Bangladesh. Mr Lasker provides an opinion on the methods for obtaining ownership of land properties in Bangladesh and the processes to ascertain ownership of any land properties in Bangladesh.
The applicants rely on this opinion as evidence of a matter that they say is ‘common sense’, in support of a submission that the website used by the delegate to verify their property ownership in Bangladesh was unreliable. The Minister objects to the admissibility of the affidavit on the basis that it was not before the delegate and therefore is not admissible for the purposes of determining whether the delegate’s decision is affected by jurisdictional error.
I agree with the Minister that the legal opinion is not admissible in this proceeding. The opinion was not before the delegate and contains information that would only be relevant if this Court was engaging in merits review, which it is not.
On the day of the hearing, the applicants provided to Chambers an expert opinion of Anthony Mark Allan dated 30 October 2023. Mr Allan has worked in information technology since 1978 and provided an opinion relating to the trustworthiness of the databases used by the delegate for verifying the properties that the applicants claim to own. The applicants rely on Mr Allan’s report to demonstrate that the delegate relied on an untrustworthy website in making his decision and again submit that the matters contained in the affidavit are common knowledge based on data available in publicly available websites.
The Minister objects to Mr Allan’s report being received into evidence on two bases. First, the Minister, quite legitimately, complains about the lateness of the provision of the report and submits that the Minister is ambushed by the report. I note on the face of the report that the request for an opinion was made on 26 October 2023, the report was dated 30 October 2023. The hearing in this matter was listed on 31 October 2023. Pursuant to an Order I made on 6 October 2023, any documents that the applicants intended to rely on in this proceeding were required to be filed by 9 October 2023. The report was provided well outside the time allowed in the Court Order, and too close to the hearing to allow any detailed consideration of the report ahead of the hearing.
In any event, it is unnecessary to determine whether the late provision of the report should be a basis for denying the applicants leave to rely on the report because I accept the Minister’s second basis for objecting to the report being received into evidence. That objection is that the report is inadmissible because it was not before the delegate when the delegate made his decision and does not contain information that is common knowledge. I agree that Mr Allan’s expert report is not relevant to determining whether the delegate’s decision is affected by jurisdictional error and is inadmissible, taking into account the nature and content of the report and that it was not in evidence before the delegate.
Court’s power to grant an extension of time
Section 477(2) of the Migration Act allows the Court to extend the time within which the applicants may file an application for judicial review of the delegate’s decision if the applicants make an application for an extension of time in writing and if the Court considers that it is necessary in the interests of the administration of justice to grant the extension of time. In the present case, the applicants have made an application for an extension of time in writing.
The factors that the Court can take into consideration in deciding whether it is necessary in the interests of the administration of justice to grant the extension of time are not prescribed, but the Court will usually take into account considerations such as the length of the delay, whether there is an adequate explanation for the delay, any prejudice to the Minister and the merits of the proposed substantive application: see, for example, SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 at [46]-[48].
Length of the delay
As discussed above, the application to this Court was required to be filed by 11 May 2018 and was instead filed on 20 December 2018. This is a delay of 223 days or seven months and nine days. A delay of over seven months, in the context of a prescribed period of 35 days to seek judicial review, is significant.
Explanation for the delay
The first applicant deposed that upon receiving notice of the visa refusal, he was severely shocked to find that he was accused of giving false or misleading information to the Department. He felt ashamed to notify his brothers of the decision and felt despondent, maligned, and believed the Minister’s accusation was completely unfair. In July 2018 he contacted the migration agent to see if he could do anything to have the Minister reconsider the decision. He was advised that there was no other option available to him and this advice deepened his feelings of dejection. He then sought further advice from his migration agent but it was sometimes difficult to contact his agent because the first applicant was in Bangladesh and his migration agent would often travel overseas. The first applicant gave evidence of steps that he took to try and establish ownership of his properties in Bangladesh prior to bringing the application, including seeking assistance from lawyers in both Bangladesh and Australia. Based on the first applicant’s affidavit, the steps appear to be taken between September 2018 and December 2018.
Counsel for the applicants submitted that this is a reasonable explanation for the delay because after the initial shock the first applicant did not sit on his hands, and he had to rely on others for advice.
Counsel for the Minister submitted that the first applicant’s explanation for the delay is insufficient to justify a delay of over six months. Counsel for the Minister also referred to the first applicant’s evidence that he is a businessman and submitted that it should not be unusual for a businessman to have to seek legal advice, which further suggests the first applicant should not have delayed contacting an Australian migration agent once he was presented with an unfavourable decision.
I do not accept that the applicants have provided an adequate explanation for the delay in filing their judicial review application. Most significantly, it appears from the first applicant’s evidence that he took no steps at all to find out about any review rights until July 2018, which was approximately two months after the judicial review application was due to be filed. The first applicant has provided no explanation of his reasons for not taking action in this time other than his subjective feelings in relation to the delegate’s decision.
To the extent that one of the grounds raised by the applicants in support of their extension of time is based on difficulties contacting the migration agent, I do not accept on the evidence before me that this amounts to an adequate explanation for the delay. There is no evidence that the applicants took any steps to contact their migration agent before July 2018 and there is no specific evidence of the steps that the first applicant took to try and contact his agent after that. In his affidavit, the first applicant deposed that it was difficult to contact his agent because of the different time zones between Bangladesh and Australia. However, this does not explain why the first applicant did not attempt to take some steps to seek advice from his agent, such as communicating by email or contacting his agent at a time when the agent’s office was open in Australia. The first applicant also deposed that his migration agent would often travel overseas and would be unavailable to take his queries but did not give any evidence of specific attempts to contact the agent where the agent was unavailable.
The failure to provide an adequate explanation for the delay is a matter that weighs against the grant of an extension of time.
Prejudice to the Minister
The Minister does not claim to face any prejudice as a result of the applicants’ delay in filing the judicial review application and I am satisfied that the Minister does not face any real prejudice as a result of the delay. Absence of prejudice alone, however, is insufficient to warrant the grant of an extension of time: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.
Merits of the proposed substantive application
In considering whether an extension of time should be granted, the Court will often consider the merits of the proposed judicial review application at a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [62]-[63]. However, the Court is not required to confine its consideration of the merits to an assessment at a reasonably impressionistic level: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28 [17]-[19] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [49] (Gordon, Edelman and Steward JJ).
It is acknowledged that the effect of a limitation period on commencing a proceeding ‘may often result in a good cause of action being defeated’: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 553 (McHugh J).
To consider the merits of the proposed judicial review application, it is first necessary to identify the proposed grounds upon which the applicants rely.
In their application for judicial review the applicants raised the following three proposed grounds of application:
1.The decision dated 06 April 2018 made by the Respondent is affected by jurisdictional error as the Respondent disregarded the title documents of the physical assets of the Applicants.
Particulars
1.1The Respondent disregarded the mandatory provisions of the section 54 of the Migration Act 1958 requiring the decision maker to have regard to all the information in the visa application.
1.2More specifically, the Respondent breached the section 54(2)(b) of the Act 1958 by ignoring the title documents attached to the Application.
1.3The Respondent also breached section 55 of the Act 1958 by ignoring the information given by the Applicant on 25 March 2017 to the effect that online land record system in Bangladesh is in its developing stage.
2.The Respondent without any reason held that the Applicants provided implausible information with respect to the RAJUK’s database (online data system) and therefore the information provided by the Applicants was false and misleading.
Particulars
2.1The Applicant explained the correct status of the RAJUK’s database that it is still in its developing stage.
2.2The information provided by the Applicants was clear and plausible and the implausibility if any is in the RAJUK’s system; for which the Applicants are not responsible.
3. The Respondent illogically applied PIC 4020 for no fault of the Respondent.
Particulars
3.1The Respondent disregarded that the PIC 4020 could be attracted in cases of fraud, falseness, bogus document or misleading information. The information that RAJUK’s database was in its primary stage was plausible information and its unreliability was confirmed by the decision maker as well.
3.2The Respondent punished the Applicants because the Bangladesh online land title system was not reliable for which the Applicants are not responsible.
The applicants did not address any of these grounds in their submissions filed on 9 October 2023. Rather, at [4] of those submissions, the applicants contended that the delegate’s decision was wrong because the delegate ‘took into account an irrelevant consideration’. The submissions then proceed to address why they say that the website used by the delegate to authenticate the applicants’ claimed ownership of land in Bangladesh was not an authoritative or reliable source.
The grounds of application are important to make clear to the Court the case that the Court needs to assess and to make clear to a respondent the case that the respondent needs to answer. It is not acceptable to be addressing grounds in submissions that are not raised in an application. Due to the approach taken by the applicants in their written submissions, at the hearing I asked Counsel for the applicants to confirm the grounds upon which the applicants rely. After some discussion, Counsel for the applicants acknowledged that the grounds could be expressed more clearly and submitted that the applicants are essentially relying on two grounds:
(a)that the Minister has taken into account an irrelevant consideration; and
(b)that the decision made by the Minister was irrational or illogical.
After further discussion with the parties, I proceed on the basis that the assertion that the Minister took into account an irrelevant consideration is essentially the ground that is addressed in the applicants’ written submissions and I treat the assertion that the decision was irrational or illogical as being informed by the particulars in the written application.
There are procedural fairness concerns that arise when the grounds of the application are clarified only at the hearing. I invited the parties to confirm at the end of the hearing whether they wished to raise any concerns about procedural fairness and neither party sought any opportunity to file further written submissions. I am satisfied that Counsel for the Minister was able to respond to the applicants’ changing case on her feet.
I consider, in turn, the two proposed grounds relied on by the applicants.
Did the delegate take into account an irrelevant consideration?
I do not understand the applicants to be claiming that the delegate took into account an irrelevant consideration in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at [15] (Mason J). Rather, the applicants’ complaint is that the delegate interrogated the RAJUK database to verify the applicants’ ownership of real property, and that was not an authoritative source of land ownership information in Bangladesh and not a reliable source. The applicants submitted that the RAJUK database cannot be identified as an official government source because it is not identified by any name, the URL provided by the delegate was identified only by a set of raw numbers, the website is not secure, and the delegate did not consider that the website may contain information that may be transient, subject to unregistered dealings or otherwise out of date or incorrect.
In oral submissions, Counsel for the applicants reiterated that it was the process adopted by the delegate that the applicants were challenging. He submitted that instead of relying on the RAJUK database, the Minister could have made inquiries of the Title Offices in Bangladesh. He further submitted that any information from the RAJUK database should have been treated with a degree of caution by the delegate, particularly in circumstances where an IP address has been used rather than a named website, and the delegate should have been mindful of the possibility that the accuracy of the information might be affected by unregistered dealings.
Counsel for the Minister submitted that it was not irrelevant to consider the RAJUK database on a Bangladesh authority website. Insofar as the applicants’ complaint relates to the use of an IP address, the provision of an IP address to the applicants should not be understood as an indication that the delegate actually typed in that address to find the information.
I do not consider that by attempting to verify the applicants’ claimed property ownership on the RAJUK database, the delegate took into account any irrelevant consideration. The property ownership of the applicants was clearly relevant to whether they met the criteria relating to the value of their assets, and it was open to the delegate to seek to verify the evidence that they provided. The delegate chose to do this by referring to the RAJUK database. The fact that there may have been other ways of verifying the applicants’ property ownership, including by sending someone to Bangladesh to attend the relevant titles office, as the applicants say should have been done, does not mean that referring to the RAJUK database amounted to taking into account irrelevant information.
On the information that was before the delegate at the time of the delegate’s decision, there was nothing to suggest that the RAJUK database was so unreliable as to be of no probative value. The delegate accessed the information from the RAJUK database, which on its face appears to be contained on a government-supported website, and invited the applicants to comment on that information. While the applicants submitted that the information on the database is not always updated promptly, they further submitted that they had requested for the information to be updated and provided screen shots to show that it had been updated since the delegate first accessed the database. Rather than urging the delegate not to have regard to the database, the applicants’ response appears to suggest that the information on the database had been updated in relation to the applicants’ properties and therefore verified their ownership of the properties. It was open to the delegate to place weight on the RAJUK database as part of the delegate’s fact-finding function.
The applicants’ proposed ground alleging that the delegate took into account an irrelevant consideration has insufficient prospects of success to justify the grant of an extension of time of seven months.
Was the delegate’s decision illogical or irrational?
The applicants did not make any separate submissions in relation to their proposed ground that the delegate’s decision was illogical or irrational.
The Minister submitted that the delegate’s decision shows that the delegate turned his mind to the title documents provided by the applicants. The fact that the delegate sought to verify those documents does not mean that they were disregarded. The Minister further submitted that it was reasonable for the delegate to form a suspicion that the applicants had provided false and misleading material based on the information before the delegate, and the applicants’ response to the invitation to comment reinforced the view that the RAJUK website was an authoritative source. The delegate had regard to the response provided by the applicants and it was open to the delegate to find that the further information provided by the applicants was insufficient to overcome the delegate’s concerns. The delegate’s decision was not illogical or irrational.
As indicated above, I have treated the proposed ground asserting illogicality or irrationality as being informed by the grounds and particulars in the written application.
The applicants assert that the delegate did not have regard to title documents provided by the applicants. Given that the delegate sought to verify these documents and found that they contained false or misleading information, it clearly cannot be said that the delegate did not have regard to them. Rather, the applicants’ complaint appears to be that the delegate did not accept these documents.
The delegate’s decision will only be illogical or irrational if there was only one conclusion open on the evidence and the delegate did not reach that conclusion, or if there was no room for a logical and rational decision-maker to reach the same decision as the delegate on the evidence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135] (per Crennan and Bell JJ).
The delegate accessed the RAJUK database and saw that Property No 1 was listed on the database with an owner who was not the applicants and that Property No 2 and Property No 3 were not listed. Based on this information, it was reasonably open to the delegate to form the reasonable suspicion that the applicants had given or caused to be given to an officer of the Department information that was false and misleading at the time it was given.
The delegate then considered the applicants’ response to the invitation to comment. In summary, the delegate’s reasons for not believing the applicants were the owners of the properties, based on the information in their response, included that:
(a)while the RAJUK database, when the delegate revisited the website, showed that the first and second applicants were listed as the owners of the properties, the details available on the database were incomplete when compared with other properties in the same sector;
(b)the first applicant’s explanation that RAJUK’s database continued to list previous owners is not applicable to Property No 2 and Property No 3 given that these properties were not listed on RAJUK’s database when the delegate conducted the original search; and
(c)the first applicant provided copies of letters that the first applicant and second applicant sent to RAJUK to request that the database be updated, but did not provide any evidence that RAJUK had acknowledged the request or confirmed the change in ownership.
While different decision-makers may have reached a different conclusion on the information before the delegate, the conclusion reached by the delegate was one that was open on the material before him. The delegate’s decision that the applicants gave information to an officer that was false or misleading at the time it was given cannot therefore be said to be illogical or irrational. It follows that it was not illogical or irrational for the delegate to find that the first applicant did not satisfy PIC 4020.
To the extent that the applicants’ proposed illogicality and irrationality ground can be understood as an assertion that the delegate’s decision was illogical or irrational because the delegate relied on a website that, in the applicants’ submission, is unreliable, I repeat the observations at [48] above. It was not illogical or irrational for the delegate to take into account the information on this website in reaching his decision.
The applicants’ proposed ground asserting illogicality or irrationality in the delegate’s decision does not have sufficient prospects of success to warrant the grant of an extension of time of more than seven months.
The Court does not have jurisdiction to cure wrong findings of fact
The applicants clearly feel aggrieved by the delegate’s finding that they are not the owners of the three properties they claim to own. It is not the role of the Court to make any finding or to express any view about whether the applicants do in fact own these properties.
In this regard, I note the Minister’s reference in his written submissions to the following observations of Brennan J in Attorney-General (NSW) v Quinn (1990) 170 CLR 1 at 35-36:
The court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power … if courts were to postulate rules ostensibly related to limitations on administrative power but in reality calculated to open the gate into the forbidden field of merits of its exercise, the functions of the courts would be exceeded.
Conclusion in relation to the merits of the proposed judicial review application
While the proposed grounds raised by the applicants are not wholly without merit, they do not have sufficient prospects of success to warrant the grant of an extension of time in this matter.
CONCLUSION
Taking into account:
(a)the delay of over seven months in filing the judicial review application, which is significant, but not extreme;
(b)my finding that the applicants have not provided an adequate explanation for a delay of that length; and
(c)my findings that the applicants’ proposed grounds have insufficient prospects of success to warrant an extension of time of over seven months,
I find that it is not in the interests of the administration of justice to grant the applicants an extension of time to seek judicial review of the delegate’s decision. The application for an extension of time is therefore dismissed.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 9 November 2023
SCHEDULE OF PARTIES
MLG 3885 of 2018 Applicants
Fourth Applicant:
NUJHAT NAOWAR
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