BDO19 v Minister for Home Affairs
[2019] FCCA 2777
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDO19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2777 |
| Catchwords: MIGRATION – Application for extension of time to bring application – delay of one year and 5 days in filing application for review – no reasons of substance advanced by applicant explaining delay – substantive claim not reasonably arguable – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) |
| Cases cited: Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 SZTES v Minister for Immigration and Border Protection [2015] FCA 719 |
| Applicant: | BDO19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 274 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 20 September 2019 |
| Date of Last Submission: | 20 September 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Ms Tattersall of Sparke Helmore |
ORDERS
The application for review filed on 18 March 2019 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application for extension of time and of the application for review fixed in the amount of $4,400.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 274 of 2019
| BDO19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia as an Unauthorised Maritime Arrival on 30 January 2013.
On 25 November 2016, the applicant applied for a Safe Haven Enterprise Visa. On 6 June 2017, the Delegate refused to grant to the applicant the SHEV.
On 9 June 2017, the matter was referred to the Immigration Assessment Authority (the Authority) for review. On 30 June 2017, the applicant provided a submission to the Authority.
On 6 February 2018, the Authority affirmed the decision of the Delegate not to grant to the applicant the SHEV.
On 18 March 2019, the applicant filed in the Registry of this Court an application for review of the decision of the Authority. In doing so, the applicant was one year and five days out of time in respect of the filing of such application.
In his application for review, the applicant seeks an extension of time for the filing of the application for review. Under the heading “Grounds of Application for Extension of Time”, the applicant inserted the following ground:
1. N/A Brain/operation PA Hospital or heart (not sure).
The Court then examined the grounds for review as set out in the application filed by the applicant. The grounds of the application for review were as follows:
Grounds of Application
1. The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision.
Firstly, it is clear that this Court has no jurisdiction to review the decision of the delegate, and hence such ground will be disregarded.
As to the other assertion in the grounds of application, the applicant was asked by the Court in what respect the Authority was wrong in making its decision. In response to such request as made by the Court to the applicant on at least two occasions, the applicant provided the following particulars:
(1)He was sick and unwell at the time of the hearing before the person who interviewed him and couldn’t understand proceedings.
(2)He could not recall what he said at the time of the interview.
(3)He said that he made incorrect statements to them which may have been misunderstood.
(4)The interpreter had misinterpreted what he had said.
(5)He was mentally unwell and unstable.
When the gist of those particulars were put to the applicant, he agreed that that was what his complaints were.
It seems clear that those particulars relate not to the proceedings before the Authority, but rather to the occasion when the applicant was interviewed at a time soon after he entered Australia.
In applications for extension of time in matters such as the present, the following matters have been identified as relevant to a Court’s consideration of that issue, namely:
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)The extent of the delay.
d)Whether the substantive application is sufficiently arguable to support the application for an extension of time.
Ms Tattersall, on behalf of the first respondent, has conceded that there is no prejudice alleged on the part of the first respondent other than the costs incurred by the first respondent, as well as considerations of public interest in bringing to finality matters such as the present. It was submitted on behalf of the first respondent that mere absence of prejudice was not a sufficient basis for the granting of an extension of time. [1]
[1] Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67.
As to the other matters, the extent of the delay is substantial. As a matter of public policy, matters should not be unduly delayed in cases such as the present. Additional to the substantial delay in this matter, it is a relevant consideration that the applicant in no respect has provided any reasonable or adequate explanation for such delay. The particulars sought from the applicant in relation to his substantive claim for review suggest that he was unwell at the time of his entry interview, but not at any other relevant time.
The entry interview occurred at Wickham Point Immigration Detention Centre on 5 March 2013. There is no suggestion that the applicant was in any way prejudiced in filing of the application for review in this court, or otherwise in the conduct of this proceeding, by any sickness which he may have suffered at the time of such entry interview. The irregular maritime arrival entry interview is recorded, and gives no indication that at the time of that interview the applicant was unwell. [2] Indeed, the applicant subsequently filled out a substantial statutory declaration relating to his claims, such declaration having been signed on 23 November 2016. [3]
[2] CB page 1.
[3] CB pages 78 – 83 inclusive.
Nowhere in that statutory declaration is there an assertion that the applicant was unwell, either at the time of the entry interview, or otherwise at the time that such statutory declaration was prepared.
The question of the applicant’s state of health was addressed by the Authority at page [30] of its reasons. The Authority there said:
However, the applicant’s entry interview took place some five weeks after the applicant’s arrival in Australia and during the entry interview he gave no indication that he was unwell. He sometimes said that he was unable to remember certain matters, such as his exact age, when he finished school and his wife’s exact age, but he gave no indication that he was in any way confused about the events which lead him to depart Bangladesh, or the circumstances or whereabouts of his wife (even though he did provide inconsistent information in the same interview about the current whereabouts of his wife), and I am not persuaded that he would have felt uncomfortable about talking about events of this kind as having occurred in 1990 given that he described events of a very similar nature as having occurred in 2000 and 2004.
Based on the lack of evidence or explanation for the late filing of his application, the court finds that the applicant has not given any reasonable or adequate explanation for the delay. The court has had regard to the judgement of Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [46] – [50] inclusive where it was said:
[46] Section 11 of the ADJR Act does not contain an express precondition invoking the interests of the administration of justice. Nevertheless, these observations made in the context of s 11 of the ADJR Act are apposite to the exercise of jurisdiction under s 477(2) of the Act.
[47] In SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252 (SZRIQ), Foster J said the following concerning s 477(2) of the Act (at [46]-[48]):
There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
a. Whether there has been a reasonable and adequate explanation for the applicant’s delay;
b. Whether there is any prejudice to the Minister;
c. Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.
[48] The third factor referred to by Foster J, whether the substantive case for judicial review is “sufficiently arguable”, is particularly relevant in the circumstances of this case. Indeed, as has been said, the decision of the Federal Circuit Court judge turned largely on this factor. The expression “reasonably arguable” is no different in substance from other expressions that have been used to describe this factor, including “reasonable prospects of success”.
[49] In the context of an application for the extension of time, it is generally inappropriate to fully investigate the merits of the substantive case, though obvious strengths or weaknesses may be a factor for or against extending time: ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [111]. In Seiler, again in the context of an application to extend time under s 7 or 11 under the ADJR Act, French J said the following about the assessment of the merits (at 98):
In deciding to allow time to be extended, I have not taken into account the merits of the application. It was fully argued on the merits in any event. In the circumstances, it would be artificial to import into the consideration of the extension of time some assessment of the likelihood of the success of the application. The question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the decision to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it. In the event, and for the reasons outlined, I propose to grant the necessary extension of time.
[50] These observations would also appear to be apposite insofar as the prospects of success of the substantive application is a relevant factor in considering the interests of the administration of justice in s 477(2) of the Act.
[51] The manner in which the extension application was dealt with by the Federal Circuit Court judge was, in all the circumstances, less than satisfactory. It does not, however, necessarily follow that the applicant was denied procedural fairness. The critical question, in short, is whether as a result of the procedural deficiencies there was any “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]-[38].
[52] The problem with the hearing in the Federal Circuit Court was the product of a combination of factors. The extension application was set down for hearing at the same time as the substantive application. That is in itself not necessarily problematic. Courts regularly set down applications for leave to appeal or extensions of time at the same time as the appeal or substantive application. When this is done, however, it is important for the court and the parties to proceed in a way that makes it clear whether the leave or the extension application remains a live issue. In particular, care should usually be taken to ensure that issues that arise in relation to the leave or extension application are dealt with separately and distinctly from the issues that arise on the substantive application.
On the question of whether the substantive application is sufficiently arguable to support the application for an extension of time, it is submitted on behalf of the first respondent that due to the lack of particularity of the grounds for review, the applicant’s sole remaining ground as to the Authority having erred in law in making its decision is unarguable. It is submitted that in the absence of any particularisation, the applicant cannot satisfy any condition for the grant of an extension of time based upon his case being sufficiently arguable. The first respondent referred to the decision of the Federal Court in WZATH v Minister for Immigration and Border Protection [2014] FCA 969 in support of the proposition that the failure to provide particulars in the application for review is a ground for dismissal of that application.
The court is not convinced that the applicant has an arguable case for review. The material before the court as set out in the applicant’s statutory declaration, when read closely, is able to justify, however, the identification of the following claims made by the applicant, namely:
a. the applicant’s parents passed away when he was seven or eight years old and that under Sharia law he therefore inherited his father’s family land with his two brothers. The applicant claims that when he confronted one of the brothers about not equally sharing profits from farming the land, the applicant was tortured and threated by him. The applicant stated that that brother was a member of the Awami League and had a close relationship with the chairman of the local union.
b. On two occasions in 1990, the applicant’s brothers threatened the applicant and beat the applicant after he refused to sign documents transferring portions of the land to them. The applicant alleges that on a third occasion, one of the brothers started abusing the applicant’s wife, which led to her attempting to commit suicide. On a fourth occasion in 2000, the applicant claimed that his brothers and some of their friends beat the applicant and locked him in a room until he signed the sale of land documents. The applicant claimed that shortly after that fourth incident, the applicant left Bangladesh in 2000 and went to Malaysia.
c. The applicant claims that after he left Bangladesh, the applicant’s cousin attempted to extort benefits from the applicant’s wife. He said that on many occasions the applicant’s wife had also been threatened by the applicant’s family.
d. The applicant claims that he feared that one of his brothers would kill him if he returned to Bangladesh.
The Authority found that the applicant’s claims were inconsistent in a number of significant respects. At [29] – [30] of its reasons, the Authority addressed such issues. At [31] of its reasons, the Authority found that it was not satisfied that the applicant’s level of education or any asserted errors in interpretation could adequately account for the extent of the inconsistencies in the applicant’s evidence. The Authority made a number of adverse finding at [30] – [34] inclusive of its reasons.
The Authority dealt with DFAT country information, which reported that Bangladesh accepted both voluntary and involuntary returnees, and that such returnees had not been subjected to any adverse attention by the Authorities, or others, upon their arrival after return. There was no distinction between returnees who were voluntarily returning to the country, as opposed to those who were involuntarily returning to the country in that regard.
The Authority found that because the applicant had departed Bangladesh lawfully, it was not satisfied that the applicant would face a real chance of harm from the Bangladeshi authorities, or any other official actor in Bangladesh, by reason of his being a failed asylum seeker, or by reason of his having sought refugee status overseas. The Authority found that the applicant did not meet the relevant criteria under the provisions of section 36(2)(a) of the Migration Act 1958 (Cth) (the Act).
For the same reasons, the Authority was not satisfied that the applicant would face a real chance of harm, or experience harm of any kind, if he was to be returned to Bangladesh. The Authority was not satisfied that the applicant would face a real risk of experiencing harm of any kind if he was to return to Bangladesh, nor was it satisfied that the applicant would face a real risk of experiencing any significant harm if so returned. The Authority found that the applicant did not meet the relevant complementary protection criteria as provided for under the provisions of section 36(2)(aa) of the Act.
When considering all of the circumstances of the application for extension of time, the Court does not consider that the applicant has an arguable case on his substantive application for review. The Court further finds that it is not in the interests of justice that such application be granted.
Accordingly, the application for extension of time is refused.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 2 October 2019
0
6
2