BMG20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1983
•27 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BMG20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1983
File number(s): MLG 1119 of 2020 Judgment of: JUDGE BLAKE Date of judgment: 27 August 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa – no reasonable prospect of successfully prosecuting the proceeding or claim – abuse of process – Applicant seeking to litigate a case that has already been dealt with – application for extension of time – Applicant seven years out of time – significant delay justifies not granting extension of time – not in the interests of the administration of justice to extend time – application dismissed Legislation: Federal Circuit Court of Australia Act 1999 (Cth) s 17A
Federal Circuit Court Rules 2001 (Cth) r 13.10(a), 13.10(c)
Migration Act 1958 (Cth) ss 375A, 438, 477(1), 477(2))
Cases cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Commonwealth of Australia; ex parte Marks (2000) 75 ALJR 470
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
SZVHI v Minister for Immigration & Anor [2020] FCCA 1988
Walton v Gardiner (1993) 177 CLR 378
Number of paragraphs: 36 Date of hearing: 18 August 2021 Place: Melbourne Advocate for the Applicant: In person Solicitor for the Applicant: None Solicitor Advocate for the Respondents: Mr Daly Solicitor for the Respondents: Mills Oakley ORDERS
MLG 1119 of 2020 BETWEEN: BMG20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.The Application filed on 5 April 2020 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $3,737.
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for review of a decision made by the then Refugee Review Tribunal (now Administrative Appeals Tribunal) ('Tribunal') on 28 June 2012. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection (Class XA) visa ('visa').
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a Chinese national. The Applicant arrived in Australia on 1 April 2005 as the holder of a student visa issued on 13 March 2005. The Applicant's last day of study was recorded as 24 July 2007. He applied for the visa on 20 September 2011.
On 14 December 2011, the Applicant attended a Protection Visa interview ('PV interview').
On 4 January 2012, a delegate of the Minister ('delegate') refused to grant the Applicant the visa.
On 31 January 2012, the Applicant applied to the Tribunal for review of the delegate's decision.
On 25 June 2012, a hearing was held at the Tribunal. The Applicant attended the hearing.
On 28 June 2012, the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa.
The Applicant applied for judicial review of the decision of the Tribunal on 24 July 2012. The proceeding was assigned matter number SYG1607 of 2012. That application was heard by Federal Magistrate Emmett on 11 March 2013. Emmett FM dismissed the application for review (Court Book 150-167). There is no dispute that the Applicant did not appeal the decision of Emmett FM.
The Applicant then commenced further proceedings in this Court by filing an application for review ('Application') and affidavit in support on 5 April 2020.
Orders were subsequently made by Registrar Carlton on 23 November 2020. Among other things, the Registrar granted leave to the Applicant to file and serve any amended application, written submissions or affidavit. The Registrar also made an order that the Application be listed for an expedited extension of time hearing and if time is extended, a final hearing, on a date to be fixed.
The Applicant has not filed an amended application, written submissions or affidavit. The Minister filed written submissions on 4 August 2021.
THE APPLICATION
In the Application, the Applicant contends that time should be extended on the following grounds:
1.I did not know I could seek a leave of extension of time to file a review application with the Court.
2. I did not know the failure to disclose country information is reviewable.
3.I did not know the failure to disclose a certificate issued by a delegate can be reviewed.
The substantive grounds of review set out by the Applicant in the Application are as follows:
1.The Tribunal failed to disclose the independent country information in respect of strict restrictions on a QQ video link, and therefore failed to give the applicant an opportunity to make submission.
Particulars
Paragraph 51 of decision record
2. The Tribunal erred in its findings without support evidences.
Particulars
Paragraph 51 of decision record
3.The Tribunal erred in its finding by taking irrelevant consideration, namely the Tribunal should consider whether the applicant was in fear of returning to China. The subjective fear is related to the applicant not his parents.
Particulars
Paragraph 74 of decision record.
4.The Tribunal failed to disclose the existence of any certificate issued under s438 or s375A of the Migration Act.
5.If ground 4 is found, the Tribunal failed to give the applicant an opportunity to make submissions on its validity.
Nothing in the affidavit filed by the Applicant in support of the Application supports any of the grounds above. I asked the Applicant to state his case during the hearing before me. The Applicant stated that he did not know he could appeal the decision of the Tribunal again, and that while the Tribunal relied on Country Information in relation to his claims that he viewed church gatherings over a QQ link, he did not get access to, or have a chance to read or respond to the Country Information relied on by the Tribunal.
The Application pursued by the Applicant faces a number of difficulties. Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) ('FCC Act') provides as follows:
(1)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
(5)This section does not apply if the Federal Circuit Court of Australia is exercising jurisdiction under the Family Law Act 1975.
Rule 13.10(a) of the Federal Circuit Court Rules 2001(Cth) ('Rules') relevantly provides that the Court may order that a proceeding be stayed or dismissed if the party prosecuting the proceeding or claim has no reasonable prospect of successfully prosecuting the proceeding or claim. Further, rule 13.10(c) of the Rules provides that a proceeding may be stayed or dismissed if the Court is satisfied that the proceeding or claim for relief is an abuse of process of the Court.
I have little doubt in concluding that the present Application constitutes an abuse of process and is one that ought to be summarily dismissed pursuant to the Act and the Rules. The decision of the Tribunal under review has already been the subject of judicial review by Emmett FM who dismissed the application. The Applicant did not appeal the decision of Emmett FM. In pursuing the Application now, the Applicant is seeking to litigate anew a case that has already been dealt with. Those are recognised grounds for regarding the present Application as an abuse of process (see Walton v Gardiner (1993) 177 CLR 378; SZVHI v Minister for Immigration & Anor [2020] FCCA 1988).
While it is not strictly necessary for me to do so I also observe the following. The Application before the Court is for an extension of time in which to file the application. Pursuant to section 477(1) of the Migration Act 1958 (Cth) ('Act'), an application made to this Court must be filed within 35 days of the date of the relevant decision. Pursuant to section 477(2) of the Act, this Court may extend the 35 day time period for the filing of an application where the Court considers it is in the interests of the administration of justice to do so.
The expression 'in the interests of the administration of justice' is not defined in the Act. This Court has, however, adopted the non-exhaustive principles set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 (see also SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6], SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46-48], SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15] - [19]) when determining whether an extension of time should be granted.
Turning first to the extent of the delay. The Application to this Court was filed on 5 April 2020. The Application is approximately 7 years out of time. This has occurred in a case where Parliament has selected 35 days as being the appropriate period in which applications are to be filed, subject to the discretion afforded to the Court under section 477(2) of the Act. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25, McHugh J at pp 9 - 10 of his decision discussed the history and rationale for limitation periods, noting that a person seeking to extend the time in which to file an application has the positive burden of demonstrating that the justice of the case requires the extension.
In Commonwealth of Australia; ex parte Marks (2000) 75 ALJR 470 ('Marks'), the High Court of Australia was asked to consider making writs of certiorari and mandamus 11 and 15 months out of time, respectively. The Court refused to grant the application, stating that the case would need to be 'exceptional' before the time for commencing proceedings was enlarged by many, many months.
It is of significance that in Marks, the Court found that the extent of the delay itself was sufficient to dispose of the application. At paragraph [16], McHugh J stated:
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.
The Applicant has filed the Application well out of time. On any view, this is a very significant delay. In my view, this is one of those cases where the length of the delay justifies not granting the extension of time.
There is then the explanation of the delay. The Applicant states that he did not know he could seek leave to be granted an extension of time, that he did not know the failure to disclose country information was reviewable and that he did not know the failure to disclose a certificate issued by a delegate can be reviewed.
The first thing to observe is that the Applicant clearly knew he had rights to review the decision of the Tribunal. He had in fact exercised those rights when he filed his initial application for review in July 2012. It is therefore difficult to accept his explanation that he did not know he could seek an extension of time to review the decision of the Tribunal when he in fact had exercised that right once before. The Applicant stated before me that he did not know he could appeal the decision again. The Applicant may well have had rights to seek a review of the decision of Emmett FM in the Federal Court, but that does not explain why he has filed a further application in this Court. Nor does it explain the inordinate delay in filing the application to review the decision of Emmett FM.
Further to this, the Applicant has not provided any explanation of what has occurred in the time since Emmett FM handed down her decision. He did not claim he was unaware of the decision of Emmett FM. He did not set out the steps he had taken to seek advice on the decision of Emmett FM. He did not set out why it had taken him so long to bring the Application.
The explanations given by the Applicant for the delay are unsatisfactory. He has had approximately 7 years since the decision of Emmett FM to seek advice on matters and to make inquiries about what might be reviewable.
There is then the question of prejudice. Ordinarily, in a case such as this, the Court would be inclined to the view that the Minister suffers no prejudice such that this factor might favour the grant of an extension of time. In this matter, however, an application advanced by the Applicant has already been litigated and disposed of. In that circumstance, the Minister does suffer some limited prejudice. That prejudice is the additional litigation that the Minister would be put through as a result of having to deal with a further application.
There is then the question of whether the substantive grounds contained in the Application are sufficiently arguable.
Grounds 1 and 2 of the Grounds of Review take issue with paragraph [51] of the decision of the Tribunal. Paragraph [51] of the decision records inter alia, a summary of information that the Tribunal put to the Applicant in respect of his claims. Insofar as Grounds 1 and 2 are concerned, paragraph [51] records that the Tribunal put country information to the Applicant. It can be seen from that paragraph that the Tribunal put to the Applicant the very information that the Applicant claims was not put to him. What is recorded in paragraph [51] therefore directly contradicts the substance of Grounds 1 and 2 of the Grounds of Review, and what the Applicant submitted before me. Grounds 1 and 2 cannot be made on this basis and therefore could not be regarded as sufficiently arguable.
Ground 3 is not, in my view, sufficiently arguable. The Applicant points to paragraph [74] of the Tribunal's reasons. Paragraph [74] is in the following terms:
Given the Tribunal’s concerns about the applicant’s credibility and his failure to attend a Local Church until after being released from a detention centre, it does not accept that he was a Local Church member in China. The applicant presented some knowledge of Local Church beliefs but having regard to his evidence overall, the Tribunal is of the view that this has been gained through his attendance since August 2011 as evidenced by the letter from the Local Church in Sydney. As the Tribunal has not accepted that he was a Local Church member in China, it does not accept that he distributed pamphlets and was warned by the police and his school for doing this. The Tribunal does not accept that his parents arranged for him to leave China to avoid persecution for his religious beliefs and is of the view that the reason he gave for why his parents did not accept his current relationship with his de facto partner because they wanted him to return to China to marry someone else they had arranged for him undermines this claim. When it was put to him that his parents wanting him to return to China to marry appeared problematic, he explained that they wanted him to achieve residency in Australia through his studies. Whilst this may have been their objective, the Tribunal notes that the applicant’s own evidence is that he had ceased studying in 2007 because his family were unable to finance his studies and it has formed the view that if his parents genuinely sent him to Australia to avoid persecution because of his religious beliefs that they would not want him to return to China to marry a woman that they had chosen if he was at risk.
In respect of paragraph [74], it is important to observe that the Applicant claimed that his religious activity began in China as a child, and that his parents did not approve of a relationship that he commenced while in Australia. In order to consider these claims, it was necessary for the Tribunal to consider matters relating to the Applicant's parents. I have considered the reasoning in paragraph [74] closely. The reasoning of the Tribunal was open to it and the Tribunal was entitled to give such weight to the evidence as it thought appropriate. Further, the Court cannot review the merits of the decision of the Tribunal. When these matters are considered, Ground 3 of the Grounds of Review is not sufficient arguable.
Grounds 4 and 5 assert a failure by the Tribunal to disclose the existence of a certificate issued under section 438 or 375A of the Act. I have reviewed the Court Book materials. It does not appear that any non-disclosure certificate was issued in the matter. Accordingly, Grounds 4 and 5 of the Ground of Review are not sufficiently arguable.
In my view, the Application should be dismissed under the Act and the Rules because it constitutes an abuse of process as contemplated by the Rules. It should be dismissed under the Rules because the Applicant does not have any reasonable prospect of successfully prosecuting the proceeding. Further, the Application should be dismissed because it was filed out of time. The length of the delay is a sufficient reason for not granting the Applicant an extension of time. The failure to adequately explain the delay is a separate reason for not extending time. Further, the substantive grounds of review are not sufficiently arguable to warrant an extension of time being granted. Finally and additionally, to the extent it needs to be said I rely cumulatively on all of the matters I have identified in refusing to grant any extension of time in which to file the Application.
The Application is dismissed. I award costs to the Minister in the amount of $3,737.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 27 August 2021
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