BIQ16 v Minister for Immigration

[2016] FCCA 2741

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIQ16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2741

Catchwords:
MIGRATION – Application for an extension of time under s.477 of the Migration Act 1958 (Cth) – application refused.

Legislation:

Migration Act 1958 (Cth), ss.91X, 477

Cases cited:

Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA

176

M29/2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266
M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520; [2004] FCAFC 293

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

MZZLD v Minister for Immigration and Border Protection [2016] FCCA 1201
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
SZOCH v Minister for Immigration and Citizenship & Anor [2010] FMCA 300
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
SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158

Applicant: BIQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1400 of 2016

Judgment of: Judge Barnes

Hearing date: 12 October 2016

Delivered at: Sydney

Delivered on: 12 October 2016

REPRESENTATION

The Applicant: In Person

The Respondents: Mills Oakley

ORDERS

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

2. The Applicant pay the First Respondent’s costs fixed in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1400 of 2016

BIQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This matter comes before me as an application for an extension of time within which to bring proceedings seeking review of a decision of the Administrative Appeals Tribunal (the Tribunal) not to grant the Applicant a protection visa. 

2. Under s.477(1) of the Migration Act 1958 (Cth) (the Act) an application to this court in relation to a migration decision of this nature must be made within 35 days of the date of the migration decision. However s.477(2) provides that the court may by order extend that 35 day period as it considers appropriate if an application for the order has been made in writing specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order and the court is satisfied that it is necessary in the interests of the administration of justice to make the order. While the factors to which regard may be had in this respect are not specified, the factors which might ordinarily be taken into account were referred to by Foster J in SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 at [46]-[48].

3. To consider this application it is necessary to refer to the background to these proceedings and the Tribunal decision. Before doing so, I note that having regard to s.91X of the Act and the nature and extent of the claimed associations that the Applicant relied on in support of her protection visa application I intend to confine my description of her claims (and aspects of the Tribunal decision) to non-specific terms. However in considering the application for an extension of time I have had regard to the claims and the reasons for decision in full.

4. At the same time, in considering the merits of the grounds in the application for review as part of all the circumstances relevant to the application for an extension of time (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [41]-[43] per Mortimer J and SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [47] per Wigney J (appeal dismissed in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158)), I have borne in mind the remarks of Mortimer J in MZABP (endorsed by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]), in particular in relation to the need for a restrained approach to the assessment of the merits of the grounds of review as one of a relatively unconfined range of factors to be considered in exercising this discretion (at [70] and also see [61]-[69]). The matter was listed before me today solely for determination of the application for an extension of time.

5. In August 2014 the Applicant, a citizen of Fiji, applied for a protection visa.  At that stage (as she confirmed in cross-examination) she did not have the assistance of a migration agent or lawyer.  She indicated on her application form that she spoke, read and wrote English in addition to her first language of Fijian. 

6. The application was refused by a delegate of the First Respondent.  The Applicant sought review.  She had the assistance of a lawyer in connection with her review application who, she explained, was also a migration agent.  She told the court she communicated with her lawyer by email as he was in another part of the state in Australia in which she and the lawyer were both located at the time of the Tribunal review.  The Applicant’s lawyer participated in the Tribunal hearing of 14 March 2016 by way of telephone link.  In addition, he prepared written submissions provided to the Tribunal after the hearing. 

7. On 21 March 2016 the Tribunal affirmed the decision not to grant the Applicant a protection visa.  The Tribunal decision is comprehensive.  I have set out the Tribunal reasons in more detail than might otherwise be warranted in proceedings of this nature, having regard to the fact that the Applicant is self-represented and, as will become apparent when I turn to the issue of the assessment of merit, the grounds in the amended application were clearly drafted by someone other than a lawyer.  I will return to that issue. 

8. The Tribunal set out the basis for the Applicant’s claims to fear harm in Fiji, including summarising the claims that she made in her visa application about visiting Australia for a vacation, that the situation in Fiji had changed, that there was no freedom of speech, that she was outspoken and had associated herself in the past (and to some extent maintained such associations) with persons of some importance in political terms in Fiji and also that she had a past involvement with a political party.  She claimed to fear the military regime would consider her a threat and harm her. 

9. The Tribunal discussed the Applicant’s evidence at the Tribunal hearing in considering her claims and evidence.  It accepted claims she made about her background, family and past associations and found that she displayed a level of knowledge and interest in Fijian politics commensurate with her claims about her past interest and involvement in politics.  It also accepted her evidence that she was involved in political activities in a casual and not a formal way and that in recent years her involvement was by way of discussion with people and small groups in her social and work environments, in particular discussions about the advantages and disadvantages of the coup.  It summarised her claims to fear returning to Fiji because of her background, her opinion of the current government, her past associations with persons of political importance and her more generalised fear of the current Fijian government and what it was doing to people and may do to her as well as a concern about freedom of expression for herself and her family and a general concern for her family and the whole of Fiji.  

10. The Tribunal recorded that it questioned the Applicant at some length about whether she had ever been harmed or suffered discrimination due to her political opinion, activity or connections.  She claimed that one of her children had not initially been awarded a scholarship and that she had had to use the system and connections in the military to get the scholarship.  She claimed to fear that another of her children might also not get a scholarship to University and that a property she had leased had been broken into some four years earlier, but that the police had not responded to her report. 

11. At the hearing the Applicant also told the Tribunal that recently a friend in Australia with whom she had been discussing the situation in Fiji had told her she talked too much and that he would report her to Bainimarama.  The Tribunal indicated that it raised its concern with the Applicant about the credibility of this claim being raised so late in the hearing.  It considered the Applicant’s response. 

12. The Tribunal also described the adviser’s post-hearing submission and supporting documents and the claims elaborated on in that submission. 

13. While the Tribunal accepted the Applicant’s claims about her background, relationships and past informal role in politics, it found that her involvement had reduced since a change in her circumstances in more recent times.  It noted that she had not sought protection when visiting an overseas country in 2007 and had not left Fiji again until 2013 and that she had remained living at the same address for some years and in the same employment, including in a senior position, and that she had been able to secure rights and maintain family interests. 

14. The Tribunal considered the Applicant’s claim about her property being broken into and the lack of a police response in light of country information.  It was not satisfied on the evidence before it that the police had withheld services to the Applicant due to her political opinion or connections. 

15. The Tribunal took into account a supporting letter from a former prominent Fijian politician, but noted that the letter of support was written before the election of that person back into Parliament.  Given subsequent events, the Tribunal gave little weight to the stated belief in that letter that the Applicant’s return to Fiji would place her at great risk.  The Tribunal considered the relevance and appropriateness of relying on DFAT information about the situation in Fiji, to which it had regard. 

16. The Tribunal accepted that the Applicant was different to other Fijians because of her past involvement with high profile persons of significance in Fijian politics and with a political party, but also found that her political involvement had reduced over the years to discussions with friends in social and work environments.  It did not accept that the Applicant was a high profile public figure or leader of an organisation which might be seen to challenge the government’s authority and undermine its legitimacy (that is, within those categories of persons seen to be at risk by DFAT).  Having regard to her evidence about her more recent experiences in Fiji, it did not accept that because of her past activities and relationships the Applicant’s views had been and would be taken so seriously or viewed so differently that she would attract the attention of the authorities.  It did not accept that the Applicant or her children were considered a threat or were of adverse interest to the government or anyone else in Fiji because of her political opinion, political activity or connection to persons of past or present prominence.  The Tribunal accepted information from DFAT that public gatherings, including discussions about the outcome of the 2014 election, were now permitted in Fiji and that at times such gatherings involved robust political criticism of the government. 

17. In addition, while accepting that the Applicant would continue to discuss politics with her friends if in Fiji, the Tribunal did not accept that she would become more involved than speaking with friends.  On this basis, it did not accept that there was a real chance that the Applicant would come to the adverse attention of the government or military because of such activity. 

18. The Tribunal considered the Applicant’s concern about access to scholarships, but noted that she had been able to secure a scholarship for one child some time ago.  It also considered her general claims about the stability of Fiji and the possibility of civil unrest in light of country information that the current situation in Fiji was generally stable and secure and the fact that the Applicant had not claimed she was personally targeted or harmed during past coups.

19. The Tribunal also considered a claim made by the adviser that the mere fact of a person’s presence in Australia for a certain amount of time and work in Australia would lead to an assumption or gossip in the community that such person had made a protection visa application and that there may be, as the lawyer put it, a “dobbing in back to Fiji”.  The Tribunal understood that this submission may have raised a claim to fear harm on this basis, but did not accept on the evidence before it that there was a real chance the Applicant would be assumed to have made a protection visa application and would be harmed for that reason on return to Fiji now or in the reasonably foreseeable future. 

20. The Tribunal also considered the Applicant’s claim at the hearing that a friend had said that he would report her comments to Bainimarama as well as the submissions about a “culture of dobbing”.  It had regard to its concerns (expressed at the hearing) about the credibility of this claim, questioning the timing and plausibility of the claim in circumstances where the Applicant had said she continued to discuss politics in Fiji with friends socially and at work until the time she left Fiji, but had not claimed to have been dobbed in or suffered serious harm or persecution because of those discussions.  On the evidence before it the Tribunal did not accept that a friend of the Applicant had told her he would report her to Bainimarama or the Fijian authorities.  

21. The Tribunal did not accept, on the evidence before it, that there was a real chance that the Applicant would come to the adverse attention of the government authorities or military if she returned to Fiji now or in the reasonably foreseeable future or that there was a real chance her political activity, speaking to her friends about politics, would be suppressed, or that she would have to keep a low profile, or that she would not be allowed to express herself, or that such activity would lead to her or her family experiencing serious harm or danger or victimisation.  It did not accept that there was a real chance that she would be targeted or harmed by the military or agents or their associates or family members or friends benefiting from the military rule.  It also did not accept that there was a real chance the Applicant could face harm of any kind due to her previous political activity or relationships. 

22. The Tribunal also considered submissions about deaths in the 1980’s including the death of a person associated with the Applicant.  While it accepted such deaths were still viewed with suspicion, the Tribunal had regard to the time that had passed and did not accept there was a real chance the Applicant would be of adverse interest or targeted or face serious harm, due to a relationship with a person or persons who died at that time, if she returned to Fiji now or in the foreseeable future. 

23. For the same reasons, the Tribunal found that the Applicant did not meet the complementary protection criteria. 

24. As indicated, in considering the application for an extension of time, I bear in mind the remarks of Mortimer J in MZABP, the endorsement of those remarks by the Full Court, and also the remarks of Murphy J in MZZLD v Minister for Immigration and Border Protection [2016] FCCA 1201 at [20]-[25] in relation to the factors to be taken into account in determining whether for the purposes of s.477(2) of the Act, I am satisfied that it is necessary in the interests of the administration of justice to grant an extension of time (and see SZRIQ).

25. I have considered all of the circumstances of this case, insofar as I am able to do so on the material before the Court.  Of particular relevance are the issues of whether there is an adequate or reasonable explanation for the delay in commencing proceedings, the merits of the substantive case for judicial review and whether there is any prejudice to the Minister.  I bear in mind the remarks of Mortimer J (at [41]) in relation to the decision of Wilcox J in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176, and the suggestion that the requirement that this Court be satisfied that an extension of time is in the interests of the administration of justice does not import a necessarily different set of factors for consideration than those identified under regimes such as s.11 of the Administrative Decisions (Judicial Review)Act 1977 (Cth) and in the Hunter Valley case. 

26. The Applicant relied on an amended application filed on 14 September 2016 in which the grounds of the application for an extension of time were set out in writing as required under s.477(2)(a) of the Act, explaining why the Applicant considered it necessary in the interests of the administration of justice to grant the extension of time. It is apparent, from the manner in which the “grounds” for an extension of time were drafted and what the Applicant said in evidence today, that she had the assistance of a Fijian community organisation in Sydney in the preparation of the amended application.

27. In her affidavits the Applicant merely recited her factual claims, referred to the situation in Fiji and repeated the basis for her claims to fear harm in Fiji.  In oral evidence the Applicant adopted, for the purposes of these proceedings, what was set out in the grounds for an extension of time in the amended application.  

28. The grounds for the extension of time relate largely, although not entirely, to one of the factors that it is relevant to have regard to in the circumstances of this case, being the extent of and the reason for the delay in commencing the proceedings in this Court. 

29. The delay in this case was calculated by the solicitors for the Minister as 44 days.  As was said for the Minister, this is a not insignificant delay.  It was submitted that it had not been satisfactorily explained.  In that respect, the Applicant had the opportunity, which she took, to give oral evidence today.  She was cross-examined, in particular in relation to the circumstances of the delay. 

30. The Applicant essentially claimed that she relied on the advice of the lawyer she had obtained to assist her with the application for review by the Tribunal.  She claimed that after her application to the Tribunal was refused, she was sent an email copy of the Tribunal decision and of the information accompanying it (including an information sheet from the AAT Migration and Refugee Division which was tendered by the First Respondent and which advised applicants of the availability of an application to this Court for judicial review and of the time limit). 

31. While the Applicant conceded that she had received a copy of the information sheet accompanying the Tribunal decision and despite the fact that she is well educated, articulate, has held a position of some responsibility in the past in Fiji and speaks, reads and understands English (and, indeed, the hearing was conducted in English, which made clear her ability in that respect), the Applicant’s evidence is that she did not read the decision or the information sheet.  Rather she relied solely on what her lawyer told her.  She claimed that she asked her lawyer “What next?”, and he advised her to write to the Minister (seeking Ministerial intervention), which she instructed him to do on her behalf.  She could not recall the exact date on which this occurred, but she received a letter indicating that she did not meet the criteria for Ministerial intervention dated 17 May 2016. 

1. The Applicant made this claim in circumstances where the information sheet spelt out very clearly, after indicating that the Minister may substitute a more favourable decision, under the heading “Review of Decisions”, that:

   Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions.  The Court will consider whether we made a jurisdictional error.  If you wish to apply for review, you must do so within 35 days of the date of our decision.  If you require an extension of time, you must ask for it in the application and explain why.  The Court will decide whether or not to grant an extension of time. 

2. On the front page, the AAT information sheet also has a heading in bold type: “What Happens Next?”, which clearly would alert a reader to the alternatives available. 

3. The Applicant claimed that her lawyer never mentioned to her that she could seek review in the Federal Circuit Court or, as was stated in the grounds for an extension of time which she adopted, to seek both Ministerial intervention and judicial review at the same time.  She claimed that she had little or no understanding of her review rights and that she did not know about the prescribed period of 35 days from the date of the Tribunal decision within which an application to this Court should be commenced. 

4. The Applicant’s evidence about what occurred thereafter was, it has to said, somewhat lacking in clarity as to the circumstances in which she then, acting on what she was told by friends in the town in which she was living, left that state and travelled some considerable distance to Sydney, on the basis that she had received advice that there was an organisation in Sydney that could assist her with what was, in fact, a “next step” involving an application to what she described as the Federal Court. 

5. The Applicant claimed that she came to learn of the time limit when she came to the Fiji Community centre in Sydney, the whereabouts of which she said she located through the Fijian community after she came to Sydney. 

6. There are authorities to the effect that seeking Ministerial intervention does not constitute an adequate explanation for delay (see M29/2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266). That view is generally taken on the basis that an application for Ministerial intervention is considered to indicate a decision by the applicant to abandon any course that would seek to challenge the decision of the Tribunal on any grounds, or as an implicit acceptance that the Tribunal decision was not to be the subject of judicial challenge (see M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520; [2004] FCAFC 293 at [24]). However, in my view, whether this is so is a question for the particular circumstances of the individual case, rather than a general rule. It may well be that an application for Ministerial intervention may, in the particular circumstances of a case, be in whole or in part a satisfactory explanation for some or all of a delay in seeking judicial review.

7. In this case, not only the lack of knowledge of the Applicant (on her account) about the availability of other grounds of judicial review, but also the steps taken by her in relation to ascertaining the availability of procedures other than Ministerial intervention are matters to be taken into account.  The Applicant, on her own frank evidence, did not read the Tribunal decision or the accompanying information sheet, notwithstanding its importance to her and her obvious ability to do so.  Rather, she chose to rely entirely on the advice of her lawyer as to what to do next.  She did so in circumstances where the information sheet, which is expressed in relatively straightforward terms (particularly compared to the complexities of a Tribunal decision) made it clear that an application to the Court ought to be bought within 35 days of the date of the decision. 

8. Accepting for present purposes the Applicant’s evidence that she relied solely on the advice of her lawyer as to what action could be taken after the Tribunal decision was made, in my view proceeding in that manner was not an entirely satisfactory explanation for the delay in circumstances where the Applicant had before her accessible information as to the steps that could be taken next, including judicial review and the fact of a time limit (see SZOCH v Minister for Immigration and Citizenship & Anor [2010] FMCA 300 and SZLIH v Minister for Immigration and Citizenship [2009] FCA 108). It was open to this Applicant, on receipt of the decision and the information sheet, to have informed herself as to the available options.

9. Moreover, even after the application for Ministerial intervention was unsuccessful and the Applicant was notified of this, she then took advice from members of her community that it was appropriate for her to go interstate to Sydney and seek out an organisation for which she did not have proper contact details rather than first endeavouring to identify available options, locate the whereabouts of that organisation and find out whether it could assist her. 

10. Also, it was not clear on the Applicant’s evidence precisely when she did eventually (as she conceded that she did), read the information sheet in relation to review applications and the time limit.

11. In these circumstances, the Applicant has not provided an entirely reasonable explanation for the delay and the extent of the delay in commencing judicial review proceedings. 

12. In some circumstances, a less than totally satisfactory explanation for delay might be critical and it would then be necessary to consider this issue further.  However, this is not such a case.  Even if I were to accept that there was a completely satisfactory explanation for the delay, the difficulty that the Applicant faces is that one of the other factors that is relevant is the issue of merit in the proposed grounds of review.  As stated by Mortimer J at first instance in MZABP at [62] (albeit in relation to the grant of leave to appeal):

    … it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage.  There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued.  Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.  That in my opinion is the kind of threshold intended by the intended by the presence of as a consideration in the discretion to extend time.  If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]- [9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

13. Relevantly, her Honour suggested at [63]:

    The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]- [48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.

14. In this case, the “grounds” of review relied on by the Applicant were set out in 21 numbered paragraphs in the amended application.  However, it is clear that these grounds, as expressed, are “plainly hopeless”.  They are not grounds for judicial review, but rather reiterate the Applicant’s claims to be a refugee and ask the Court to review the current circumstances now unfolding in Fiji (which are then set out over a number of paragraphs and supported by references to country information, press releases and other annexures).  It was asserted that the current upheaval in the government re-opened for the Applicant much of the trauma and fear she went through in the past.  Her claims about past events, political events in Fiji, her profile, her fear of harm and claims about her associates and her ongoing relationships, are reiterated and accompanied by references to current or more recent events in Fiji.  The “grounds” conclude with the expression of a hope that the Court would review the Applicant’s case, taking into account these points, and would deem fit to grant her political refugee protection.  As expressed, these grounds clearly seek no more than impermissible merits review. 

15. As I endeavoured to explain to the Applicant, it is not for this Court to decide whether or not she is a refugee.  These grounds are not arguable grounds of judicial review in relation to the Tribunal decision and procedures.  They are not expressed in conventional terms, which might, on their face, be seen as raising judicial review arguments. 

16. In these circumstances, I raised with the solicitor for the Minister, how much further it was appropriate or necessary for the Court to go in assessing the merits of the substantive application for the purposes of determining an application for an extension of time.  In my view it was, in these circumstances, appropriate to ask the Applicant whether she had any other concerns in relation to the Tribunal decision or procedures and also to consider the material before the Court.  I did so.

17. The Applicant expressed a concern that she had not received “a fair hearing”.  However when I asked her to explain the basis on which she claimed she had not been given a fair hearing, she replied that this was because she continued to say that she should be considered as a refugee.  When I queried her further, she conceded that her concern was that the Tribunal had not accepted her claim that she was a refugee.  She stated that she had no other concern in relation to the Tribunal decision or procedures. 

18. As explained, the Applicant’s claim about not receiving a fair hearing was clearly based on a disagreement with the Tribunal’s findings.  Factual findings are a matter for the Tribunal.  There is nothing in the material before me to indicate an arguable case that such findings were illogical or not reasonable, that the Tribunal failed to consider any integer of the Applicant’s claims or that it otherwise fell into jurisdictional error, either in its decision or procedures.  The Tribunal decision is detailed and comprehensive.  It cannot be said that it is arguable that the Tribunal’s findings were not reasonably open to it on the material before it for the reasons it gave.  I bear in mind that I am not expressing an concluded view as to whether or not there was a jurisdictional error in proceedings on this basis. 

19. There is nothing in what the Applicant said and nor is there anything apparent on the material before the Court (considered in the manner suggested by Mortimer J and Murphy J) that is such as to indicate an arguable ground of judicial review or to satisfy me that the merits of the substantive application in any way support the application for an extension of time. 

20. The First Respondent has conceded that he suffers no prejudice by the grant of an extension of time, other than costs, although the mere absence of prejudice to the Respondent is not in itself sufficient to justify an order to extend time.  I accept that there is an important public interest in having the acts or decision of administrative bodies, such as the Tribunal, finalised.  I have had regard to the interest of the public at large in this respect and also to the interests of the Applicant, who clearly raised a concern about the prospect of return to Fiji if her application for an extension of time was not granted or application for judicial review was not successful (in circumstances where there is no right of appeal). 

21. I have had regard to all of the circumstances on the evidence before me, including, critically, the complete lack of merit in the proposed grounds of review which, as indicated, are plainly hopeless, and the lack of apparent, let alone identified, arguable grounds on any other basis in relation to this Tribunal’s decision and procedures. 

22. In all the circumstances, I am not satisfied that it is necessary in the interests of the administration of justice to grant an extension of time. 

23. The Applicant has been unsuccessful in obtaining an extension of time.  The Minister seeks costs in an amount of $3,606, consistent with the scale suggested in the Rules for an interlocutory hearing.  The Applicant told the Court that she was not working and that this was a substantial amount.  However the Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent.  While the amount sought may be seen by the Applicant as substantial and the fact that she is not working is a matter that may be taken into account by the Minister in determining when and how to seek to recover any costs, I consider that this amount is reasonable and appropriate in the circumstances of this case, having regard to the nature of the these proceedings and other similar matters.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 26 October 2016