BLB18 v Minister for Home Affairs

[2019] FCCA 637

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLB18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 637

Catchwords:
MIGRATION – Applicant 9 months out of time in filing application for review no plausible reasons given for delay – application dismissed.

Legislation:

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

Cases cited:

Re Commonwealth; Ex Parte Marks [2000] HCA 67

Applicant: BLB18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 287 of 2018

Judgment of: Judge Egan

Hearing date: 28 February 2019

Date of Last Submission: 28 February 2019

Delivered at: Brisbane

Delivered on: 28 February 2019

REPRESENTATION

Counsel for the Applicant: Mr Burrow

Solicitors for the Applicant: Arc Migration

Solicitors for the Respondent: Ms Rayment of Sparke Helmore

IT IS ORDERED THAT:

1. The application for extension of time for the filing of the application for review made on 22 March 2018 be dismissed. 

2. The applicant pay the costs of and incidental to the application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 287 of 2018

BLB18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. On 4 May 2013, the applicant, who is a citizen of Iran, arrived in Australia as an unlawful maritime arrival.  On 25 July 2013, he applied for a protection visa.  The application was taken to be a valid application for a temporary protection visa (class XD).  The applicant’s claims for protection were outlined in a statement accompanying his visa application (CB71-75 inclusive).  On 17 July 2015, the delegate refused to grant the visa.  On 18 August 2015, the applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision.  On 1 February 2017, the Tribunal invited the applicant to attend a hearing before it scheduled for 23 February 2017. 

2. Written submissions were provided to the Tribunal by the applicant’s representative on 15, 16 and 20 February 2017. On 23 February 2017, the applicant appeared before the Tribunal assisted by a representative and aided by an interpreter in the Persian and English languages. The applicant’s representative provided a further submission to the Tribunal after the hearing on 8 March 2017. On 5 April 2017, the Tribunal affirmed the decision of the delegate not to grant the visa. Section 477(1) of the Migration Act 1958 (Cth) (‘the Act’) provides that:

   An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made to the court within 35 days of the date of the immigration decision.

3. By section 477(2), the Federal Circuit Court may, by order, extend the time for the making of such application as considered appropriate if:

   a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

4. By application filed on 22 March 2018, the application sought a review of the decision of the Tribunal.  Within that application was also an application for extension of time for the making of the application for review.  The grounds for the extension of time as set out in the application are as follows:

   (1)The interests of justice support the grant of an extension of time.

   (2)The delay in bringing the application is small and the consequences of not granting the extension of time are severe.

   (3)The applicant was prevented from obtaining legal advice due to lack of funds, and upon obtaining advice immediate steps were taken to file.

5. An affidavit was filed in support of the application for review and in support of the application for extension of time.  Relevantly, the only paragraphs in such affidavit which related to factors going to the exercise of the court’s discretion to grant or refuse the application for extension of time were as follows:

   (1)I am lodging an appeal of the Administrative Appeals Tribunal decision (enclosed) beyond 35 days since the decision was made, as I was unaware of my rights to review the matter in the Federal Circuit Court and did not know how to take the matter further and was not immediately able to afford legal advice. 

   (2)As soon as I was able to pay for and obtain legal advice, I have instructed that the application be filed. 

   (3)I was only able to get this advice and give the instructions at the end of June.

6. The reference to the end of June in paragraph 5 of the affidavit set out above could only have meant June 2017. 

7. It is conceded on the part of the applicant by Mr Burrow of counsel that the delay in the filing of the application beyond the relevant 35 day period was a period of 316 days. 

8. As can be seen from the three paragraphs of the affidavit referred to above, no reasons were given for any of the assertions contained in any such paragraph.  The paragraphs do not constitute any explanation as to why between June 2017 and March 2018 the applicant did not make application for review by filing an application in the registry of the Federal Circuit Court at Brisbane or elsewhere. 

9. The High Court in Re Commonwealth; Ex Parte Marks [2000] HCA 67 at [15-17] found that in all but very exceptional cases, time limits should be rigidly applied. It was said by the court as follows:

   [15] An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this Court.

   [16] Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy8, "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision9. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.

   [17] An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.

10. No good reason has been given for the extensive delay in the filing of the application for review in this matter.  The court does not consider that the time for extending the filing date of the application for review should be extended in the interests of the administration of justice.  That is so notwithstanding that the first respondent concedes that there is no prejudice to it in respect of the question of extension of time. 

11. The specification in the legislation that applications for review ought to be filed within a strict 35 day period is for good reason, and only in exceptional cases should the time limit be extended. That is particularly so in circumstances where, for over nine months, the applicant failed to provide any good reason as to why the application was not filed by him. 

12. Such conduct runs counter to the due administration of justice and ought not to be allowed. 

13. In all of the circumstances, therefore, the application for extension of time in this matter is without merit and is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 13 March 2019