BIF18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 763
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BIF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 763
File number(s): MLG 682 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 25 August 2023 Catchwords: MIGRATION – application for an extension of time to seek judicial review – decision of the Administrative Appeals Tribunal affirming decision to refuse applicant a protection visa – where applicant failed to appear at scheduled Tribunal hearing – where Tribunal proceeded with review pursuant to s 426A(1A)(a) of the Migration Act 1958 (Cth) – where applicant’s claims lacking in detail – explanation for delay in lodging application for judicial review unsatisfactory – proposed grounds of review lacking in merit – not necessary in the interests of the administration of justice to extend time – application for an extension of time refused with costs Legislation: Migration Act 1958 (Cth) ss 426A(1A)(a), 438, 477, 477A Cases cited: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475; [2020] FCAFC 127
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
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: 44 Date of last submission: 21 August 2023 Date of hearing: 21 August 2023 Place: Melbourne Applicant: In person Solicitor for the Respondents: The Australian Government Solicitor ORDERS
MLG 682 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIF18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE SYMONS
DATE OF ORDER:
25 August 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application for an extension of time filed on 19 March 2018 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $4,189.38.
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 SYMONS:
INTRODUCTION
By an application filed on 19 March 2018 the applicant seeks an extension of time to apply for judicial review of a decision of the second respondent (the Tribunal) made on 29 June 2017 to affirm a decision dated 8 March 2017 of a delegate of the first respondent (the Minister) to refuse to grant the applicant a Protection (subclass 866) visa (the visa).
The task of seeking judicial review of the Tribunal decision is complicated by the fact that the applicant did not file his originating application until 19 March 2018, more than seven months after the time specified in s 477(1) of the Migration Act 1958 (Cth) (the Act) (being within 35 days of the date of the Tribunal’s decision) and must first satisfy the Court that it would be necessary in the interests of the administration of justice that he be granted an extension of time to do so.
The Minister opposes the granting of an extension of time on the grounds that the applicant has failed to provide an adequate and reasonable explanation for his “significant” delay and that his proposed grounds of judicial review are without merit.
BACKGROUND
The applicant is a citizen of Malaysia.
On 5 September 2016 he arrived in Australia on an Electronic Travel Authority.
On 14 October 2016 the applicant lodged an application for the visa. The applicant identified his reasons for departing Malaysia as “because of due to economic problems in the country of Malaysia. difficult to bear a lot of debt. I started to get stuck with a gold investment, and ultimately I have to bear a lot of debt. I always followed by a lender to resolve it.” The applicant explained that if he was to return to Malaysia “[m]y life would be threatened. I’m under risk. very stress to settle down everything” (CB 43).
On 8 March 2017, the delegate made a decision to refuse to grant the applicant the visa (CB 65-79).
On 14 March 2017 the applicant made an application to the Tribunal for review of the delegate’s decision. In his application form he identified a residential address, a mobile phone number (nominated mobile number) and an email address (nominated email address) (CB 81-82).
On 14 June 2017, the Tribunal sent a letter to the nominated email address inviting the applicant to attend a hearing before the Tribunal at 9.30 am on 29 June 2017. The letter contained the statement “We have considered the material before us but we are unable to make a favourable decision on this information alone” and cautioned the applicant that if he did not attend the scheduled hearing, the Tribunal “may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us” (CB 86-88).
According to case notes appearing on the Tribunal file, on 22 June 2017 and again on 28 June 2017, an SMS hearing reminder was sent to the nominated mobile number (CB 89).
THE DECISION OF THE TRIBUNAL
On 29 June 2017, the Tribunal convened a hearing in the applicant’s review application. The Hearing Record created for the event contained the handwritten annotation “lobby checked at 9:20, 9:30, 9:50. Called out in lobby @ 10:00am applicant did not appear” (CB 90-92).
On the same day, the Tribunal made a decision to affirm the decision under review and published a statement of decision and reasons (Reasons) (CB 95-103) a copy of which was sent to the applicant via the nominated email address. The applicant was also sent an information sheet that, amongst things, contained information about the review of decisions including that “[A]pplicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions….If you wish to apply for review, you must do so within 35 days of the date of our decision” (CB 105).
The Tribunal noted that in circumstances where the applicant had failed to appear before the Tribunal on the day and at the time and place he was scheduled to appear and had failed to contact the Tribunal to seek a postponement of the hearing, or to provide any reason why he could not attend at the scheduled time, it had decided to make a decision on the review without taking any further action to enable the applicant to appear before it (Reasons, [19]).
The Tribunal described the applicant’s written claims as “brief and very general” and relating to a fear due to a gold investment that had resulted in a debt and that he was “always followed by a lender to resolve it”. The Tribunal noted that although the applicant claimed that his life would be threatened if he returned to Malaysia, he had also stated that he had not suffered any harm in Malaysia and did not think he would be harmed or mistreated if he returned to Malaysia (Reason, [28]).
The Tribunal noted that had the applicant attended the hearing, it would have asked him further detail about his claims and it would have been an opportunity for the applicant to address gaps in his claims and to provide further information, including on the fundamental question of who the applicant feared and what he thinks would happen to him if he returned to Malaysia (Reasons, [29]-[30]).
The Tribunal referred to having consulted Department of Foreign Affairs and Trade and other country information for Malaysia to the extent that it was relevant to the review. However, on the limited available material, the Tribunal was not satisfied that the applicant had invested in gold and had a resulting debt; that he had ever been followed or threatened in any way by a “lender”; that he had suffered any harm amounting to serious or significant harm; that he continued to fear the harm claimed; or that there was a real chance the applicant would suffer serious or significant harm in the foreseeable future if he returned to Malaysia (Reasons, [31]).
The Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under either s 36(2)(a) or s 36(2)(aa) and affirmed the decision of the delegate on that basis (Reasons, [33]-[36]).
PROCEEDINGS IN THIS COURT
On 20 February 2019 a Registrar of this Court made procedural orders including that the applicant file and serve on or before 24 July 2023, any amended application with proper particulars of the grounds of the application and written submissions. Consistent with the procedural orders, the Minister, on 6 March 2019, filed a court book, and on 3 August 2023, filed written submissions. The Minister also filed and read an affidavit of lawyer Shauna Roeger affirmed on 3 August 2023. The applicant did not produce any material responsive to these orders. The applicant therefore relies upon his application and affidavit filed on 19 March 2018.
The application states that the applicant is applying for an order that the time for making the application be extended under s 477 of the Act. His affidavit attaches a copy of the Tribunal decision and identifies matters that go to the circumstances that he says explain his delay in filing an application for judicial review.
The hearing of the application for an extension of time was listed before me on 21 August 2023. On that day the applicant appeared in person with the assistance of an interpreter in the English and Malay languages. The Minister was represented by Ms Roeger who took steps to ensure that the applicant had copies of all material relevant to his application and the Minister’s response to it. Before the hearing commenced, the Minister’s written submissions were interpreted for the applicant from English to Malay.
I explained to the applicant that as this was an application for an extension of time, he should address me on the reasons why such an extension should be granted. I told the applicant that in doing so, he might wish to provide an explanation as to why his application for judicial review had been filed over seven months after the time specified in the Act. I told the applicant that he might also wish to tell the Court why the decision of the Tribunal was wrong, including by reference to the grounds of application that were recorded in his originating application to the Court.
EXTENSION OF TIME
It may be accepted that despite the lack of legislative prescription in relation to how the interests of the administration of justice might be satisfied for the purpose of s 477(2) of the Act, the factors which generally inform the exercise of the discretion to extend time include the following:
(a)the length of delay and whether there has been a reasonable and adequate explanation for it: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [47] (citing SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [46]-[48]);
(b)whether there is any prejudice to the Minister; and
(c)whether the applicant’s proposed grounds seeking judicial review justify the extension of time.
The question of substantive merit was addressed by the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604. In particular, the Court considered the question of whether the exercise of discretion in s 477A(2) of the Act (couched in identical terms to s 477(2) of the Act) might involve more than an impressionistic assessment of the merits of a proposed ground of review. Although the decision contained two separate judgments, there was agreement that the power conferred by s 477A(2) is unfettered and allows the Court to look at a myriad of facts and circumstances and that, reflecting the breadth of the discretion, it is within the Federal Court (and this Court’s) jurisdiction to have regard to the merits of a proposed application in such manner as it considers appropriate.
In endorsing this approach, the High Court rejected the view previously communicated by a Full Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 that “the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review”. As the majority explained, s 477(2) entrusts to the Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application.[1]
[1] See Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 at [19] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
The majority was also at pains to point out that the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice. In this regard, the level of satisfaction for the Court to reach was described as “not low”.[2]
CONSIDERATION
[2] Ibid at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
Has the applicant provided an adequate explanation for the delay?
In his application filed on 19 March 2018 the applicant provided the following explanation for the delay:
1.I’ve had a financial hardship before, so that I couldn’t afford to hire a lawyer to assist me.
2.Now, I’ve had found somebody giving me a guideline to me in proper way to do this applications.
3.I am lack of knowledge about this matters.
At the hearing, the applicant confirmed that he continued to rely on this explanation. When invited to further elaborate on these matters the applicant told the Court that his delay was caused by working on a farm and that he required more time and transport. The applicant also told the Court that he had paid $1,500 to a lawyer but had been scammed in that process.
The Minister submitted that the applicant’s explanation for the delay – both what appeared in writing and what he had said at the hearing – was unsatisfactory.
The Minister noted that the applicant had produced no evidence as to why he was not able to inquire about (or action) his review rights over the relevant time frame and had provided no evidence regarding the nature and extent of his financial hardship. The explanation (furnished at hearing) that he had paid money to a lawyer, did not progress the explanation.
The Minister invited the Court to assess these explanations against decisions that emphasised the responsibility of review applicants to ascertain their review rights and any applicable time limits and the absence of any absolute right to legal representation. The Minister also noted that the applicant had been sent an information sheet that identified the applicable time limit for seeking judicial review.
The applicant’s explanation for what is a significant delay in filing his application for judicial review is unsatisfactory. When given the opportunity to elaborate on his explanation it continued to be characterised by a lack of detail. The applicant did not identify, except in the vaguest of terms, any material step taken by him to ascertain his review rights or to obtain assistance (legal or otherwise) in the making of his application. The applicant did not explain or produce any evidence directed at his financial circumstances or more importantly, how such circumstances inhibited his ability to make a timely application to the Court.
The failure of the applicant to adequately explain the delay in filing is a consideration that weighs against the grant of an extension of time.
Do the applicant’s proposed grounds seeking judicial review justify the extension of time?
The applicant identified his proposed grounds of review as:
1.I am not satisfy with the interpreter while in the hearing case process, as they do not giving a better explainations [sic] to me.
2.Even though I am not good enough in English but still a few words of its I do understand.
At hearing, the applicant was invited to explain what he meant by his proposed ground one. The applicant told the Court that he had “made a mistake” with the formulation of this ground as he had not attended a hearing before the Tribunal.
When asked to identify any other (different) error in the decision of the Tribunal the applicant told the Court that there was “nothing else”. The applicant acknowledged that he had not understood that it was important to attend the Tribunal hearing.
The Minister described the applicant’s proposed grounds of review as “wholly without merit” and invited the Court to refuse the application for an extension of time on that basis alone. The first matter identified in the application had been abandoned by the applicant and the second, which suggested some error flowing from the applicant’s poor command of English was said to be inconsistent with the representations made by the applicant to the Department and the Tribunal; in his application form for the visa the applicant indicated that he could speak and read English (CB 27) and in his review application he answered “No” to “Need an interpreter” (CB 81).
The Minister’s lawyer, Ms Roeger, informed the Court that a more comprehensive review of the Tribunal decision had not revealed any jurisdictional error. In this context, the Minister noted that in this case a certificate had been issued on 8 March 2017, ostensibly under s 438 of the Act, on the basis that the disclosure of information contained in Folio 58 of the file number CLF2016/64758 would be contrary to the public interest (CB 80).
The Tribunal addressed the disclosure certificate in its decision. At [22] of the Reasons it stated:
22.The Tribunal gave consideration to the validity of the certificate and on the basis that a public interest reason has not been identified for the relevant folio, finds the certificate invalid. The folio subject of the invalid certificate has not been considered relevant to this review because it is largely administrative. However, the Tribunal notes the relevant folio makes reference to two other departmental file numbers and indicates that those two files are related for reason of ‘identical PV claims’. On the basis that the Tribunal does not have a copy of either of these files and it has not sought to obtain either of these files, it cannot verify the departmental claim of ‘identical PV claims’ and it places no weight on this information.
The affidavit of Ms Roeger annexed a copy of Folio 58, being the document referred to in the s 438 certificate. I am satisfied having reviewed that document that the Tribunal accurately described its content, so far as it had the potential to bear on the applicant’s review application.
The Minister submitted that no error arose in connection with the Tribunal’s approach to the s 438 certificate. It was said that the Tribunal had correctly identified that the s 438 certificate was invalid however, in circumstances where the Tribunal found the covered document was not relevant to the review, and placed no weight on it, the failure of the Tribunal to disclose to the applicant either the certificate or the information that it purported to cover, was not material. This was because there was no realistic possibility that disclosure could have led to a different decision being made by the Tribunal (referring to MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 (MZAPC) at [61]-[65]).
I too am unable to discern jurisdictional error in the decision made by the Tribunal. The applicant quite properly acknowledged that he was unable to prosecute a proposed ground that was premised on his attendance at a Tribunal hearing. The very essence of the Tribunal decision in this case was its decision to proceed under s 426A(1A)(a) of the Act to determine the applicant’s review application without taking any further action to allow or enable the applicant to appear before it in circumstances where the applicant was invited to appear before the Tribunal but did not appear on the day on which, or at the time and place at which, he was scheduled to appear.
It is common ground that the applicant failed to appear at the hearing scheduled for 29 June 2017. It appears, having regard to the applicant’s candid response given at the hearing before me that he failed to appreciate the significance of this opportunity and the consequences that might attend his failure to participate. There was not however anything in the circumstances of the applicant’s review that suggests the decision taken by the Tribunal to proceed as it did was unreasonable. The applicant had not engaged with the delegate and had placed no material before the Tribunal beyond the lodging of the review application.
Likewise, I accept the submission of the Minister that the failure of the Tribunal to disclose the s 438 certificate or the information covered by it, involved any jurisdictional error. As a High Court majority observed at [63] of MZAPC, the materiality of a failure to disclose a notification under s 438(2)(a) must turn on the potential for information covered by the notification to have borne on the decision which the Tribunal in fact made on the review and on how the Tribunal in fact dealt with information in making that decision. Here the Tribunal exposed precisely how it dealt with the information, which was that it made no further inquiries concerning the identity or detail of the “identical PV claims” and placed no weight on the information. There is nothing in the decision of the Tribunal to suggest that this explanation should be treated with suspicion. Instead, the decision of the Tribunal reflected the position that in circumstances where the applicant had placed scant detail of his claims for protection before the Tribunal, including on critical issues, that it was unable to be satisfied that he was a person who engaged Australia’s protection obligations.
CONCLUSION
In circumstances where the delay is not adequately explained and is significant and where the proposed grounds of judicial review are without merit, the application for an extension of time filed on 19 March 2018 must be refused with costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 25 August 2023
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