BMR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 357
•8 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BMR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 357
File number(s): MLG 1188 of 2021 Judgment of: JUDGE GIVEN Date of judgment: 8 December 2021 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – refusal of a safe haven enterprise visa – applicant requiring an extension of time for judicial review application – proposed grounds of review taking issue in part with delegate’s decision and asserting injustice, unreasonableness and bias in Authority’s decision – requirements for grant of extension of time considered – significant delay, inadequate explanation for delay and proposed grounds of review not reasonably arguable – refusal of an extension of time Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 175
Migration Act 1958 (Cth), ss 36, 473DC(2), 476, 477(2)
Cases cited: ABT17 v Ministerfor Immigration and Border Protection (2020) 269 CLR 439
CXK17 v Judge of the Federal Circuit Court of Australia [2019] FCA 2089
DHX17 v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475
EMT18 v Minister for Home Affairs [2019] FCA 1501
Jackamarra v Krakouer (1998) 195 CLR 516
Jess v Scott (1986) 12 FCR 187
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
MZZGC v Minister for Immigration and Border Protection [2015] FCA 842
Re Commonwealth; Ex Parte Marks (2000) 177 ALR 491
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 8 December 2021 Place: Sydney The Applicant: The Applicant appeared in person, via telephone Counsel for the Respondents: Mr Murano appeared on behalf of the respondents, via MS Teams Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG1188 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BMR21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
8 DECEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,930.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)
JUDGE GIVEN:
I have before me an application filed on 4 June 2021 by which the applicant seeks an extension of time for judicial review of a decision of the Immigration Assessment Authority (Authority) which was made on 1 June 2018, affirming a decision of the first respondent to refuse a grant to the applicant of a safe haven enterprise visa (SHEV).
Pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act), any application for a review of the Authority’s decision was to be made within 35 days, namely, on or by 6 July 2018.
Accordingly, the application to this Court which was made on 4 June 2021 is 1064 days or approximately two years and 11 months out of time from the last date to file.
Background
The applicant is a 37-year-old citizen of Vietnam (CB 60). On 13 June 2013, he arrived in Australia as an unauthorised maritime arrival (CB 116).
On 19 December 2016, he applied for a SHEV (CB 46-89; 91). His claims for protection were set out in the SHEV application and may be summarised as follows:
(a)on 1 August 2012, he participated in a local church that involved in a fight with local police because the police had ordered his local church not to practise their Catholic religion – subsequently, he was ordered to report to police regularly and was arrested and charged with “ILLEGALLY PROMOTIN[G] RELIGION” (CB 78);
(b)if he returns to Vietnam, he believes he will be arrested by police and jailed (CB 78);
(c)he has been mentally harmed (CB 79);
(d)he will not be protected by police and local authorities if he returns to Vietnam, as he was previously mistreated by them (CB 79); and
(e)he will be “treated the same” wherever he goes in Vietnam (CB 80).
On 8 February 2018, the applicant participated in an interview with the delegate (CB 101; 106).
On 27 February 2018, the applicant provided to the Minister’s Department a translation of a letter signed by a Parish Priest. In the letter, the Parish Priest said, among other things, that to his knowledge, the applicant was present “on the afternoon of 1 August 2012 to defend the priest and [a named village] parishioners, protect the chapel and speak against the government’s cruel action” (Priest Letter) (CB 110).
On 7 March 2018, the delegate refused the SHEV application (CB 116-127) and, on 13 March 2018, the matter was referred to the Authority (CB 128-130).
On 1 June 2018, the Authority affirmed the delegate’s decision (CB 151-164). In making its decision, the Authority:
(a)accepted that the applicant is Catholic (CB 154 at [9]);
(b)summarised the applicant’s claims that:
(i)on 1 August 2012, he attended a Catholic religious event at a house church in [a named village] District, being a place where the Catholic community did not have the permission of authorities to worship;
(ii)police objected to the religious event – they tried to stop it by attacking attendees, many of whom required subsequent hospitalisation;
(iii)seven people were arrested at the event and were given prison sentences of up to eight years;
(iv)about five days after the event, the applicant received a summons from the police and, when he attended the police station, he was asked to sign a statement admitting he had committed offences – he refused to sign, and the police issued an order preventing him from leaving his area which resulted in him being unable to work, as his trade involved travel; and
(v)he received a number of other summonses asking him to attend the police station which he ignored – since his departure from Vietnam, police have attended his parents’ home on numerous occasions looking for him or asking his parents to order him to return to Vietnam (CB 154 at [10]);
(c)found “the varying and vague nature” of the applicant’s evidence led it to “question his claims regarding his attendance of the house church in [a named village]” because:
(i)at the entry interview and in the SHEV application form, he gave the impression the house church was the local church he attended; but
(ii)in his interview with the delegate, he said he usually attended a church close to home and that the house church was closer to the mountains, and he also gave an unclear response to a question about whether the priest at [a named village] was the same person as his local priest (CB 154-155 at [11]-[13]);
(d)found “the omission of any reference to a 1 August 2012 incident … [in country information] … raised some doubts” (CB 155 at [13]) as to whether the incident occurred because:
(i)the applicant “did not advance any independent evidence” (CB 155 at [13]);
(ii)the country information referred to a severe incident on 1 July 2012 “when armed security forces were reported to have savagely beaten attendees of a chapel in [a named village] and smashed statues” but did not mention “any incident on 1 August 2012”; and
(iii)the Priest Letter said the incident occurred on 1 August 2012 which suggested the reference by the applicant to “1 August 2012 was not an error” (CB 155 at [14]);
(e)placed limited weight on the Priest Letter in circumstances where:
(i)the Authority considered it “somewhat surprising the author was able to vouch, in October 2014, for the applicant’s presence at an event in [a named village] more than two years earlier, particularly given the large number of people he states attended the event, the claimed turmoil of that day, and the applicant’s membership of a different parish” (CB 156 at [16]); and
(ii)the letter implied “something less than first-hand knowledge of the applicant’s presence at the claimed 1 August 2012 incident” (CB 156 at [16]);
(f)found some of the applicant’s evidence was “varied and difficult to accept” and noted that he stated in his interview with the delegate that he had been beaten by authorities, but mentioned no such beatings in his SHEV application form where he stated he had been mentally harmed only (CB 156 at [17]);
(g)found the applicant’s “accounts of events following the claimed 1 August 2012 incident have differed significantly”, given:
(i)in his entry interview he said he had been arrested once, on 1 August 2013, and charged with “illegally promoting religion” (this was consistent with what was included in his SHEV application form); but
(ii)in his interview with the delegate, he indicated that he was not arrested by police, but pressured to sign a document admitting his guilt to “resisting public officers” and “causing disruption” (CB 156 at [18]);
(h)found:
(i)the applicant’s evidence about how many summonses were issued was vague – in his interview with the delegate, he said he received a summons at his home about five days after the 1 August 2012 event (which resulted in him attending the police station) and that he received subsequent summonses including a “special summons”, but in his SHEV application form, he did not refer to any summonses (although he did mention being ordered to report to the police station regularly); and
(ii)the applicant’s explanations about why “police would not come to [his] home to deliver their summonses or to speak to him”, rather than “persist in sending summonses” was unconvincing (CB 156-157 at [19]-[21]);
(i)given the applicant had provided evidence suggesting many hundreds of people attended the event on 1 August 2012, the Authority found it “difficult to understand why police or other authorities would have held any particular interest” in him (CB 157 at [22]);
(j)having regard to the above, the Authority was not satisfied that the applicant:
(i)was involved in an incident where members of the Catholic community were attacked in [a named village] on 1 August 2012 or any other date;
(ii)attended the house church in [a named village] on 1 August 2012 or any other occasion; or
(iii)was of adverse interest to the Vietnamese authorities for those reasons – the Authority therefore did not accept the applicant was perceived to be a religious activist or opposed to the Vietnamese government for any reason (CB 157 at [23]);
(k)was “not satisfied that there is a real chance of any harm to the applicant from Vietnamese authorities, or any other group or person, on his return to Vietnam for any reason related to his Catholic faith, now or in the foreseeable future” (CB 158 at [25]);
(l)was “not satisfied that there is a real chance of any harm to the applicant from Vietnamese authorities on the basis that he left Vietnam and will be returning having unsuccessfully applied for protection and lived in Australia for a number of years” (CB 158 at [27]);
(m)while accepting that, on return, the applicant may be briefly detained and interviewed by Vietnamese authorities and/or required to pay a fine for departing Vietnam unlawfully, found that such treatment would not amount to serious harm (CB 159 at [29]);
(n)was not satisfied any of the applicant’s circumstances “would combine” to expose him to a real chance of serious harm in Vietnam (CB 159 at [29]);
(o)having regard to the above, found the applicant did not meet s 36(2)(a) of the Act (CB 159 at [30]); and
(p)for similar reasons, found the applicant did not face a real risk of significant harm and did not meet s 36(2)(aa) of the Act (CB 160 at [35]).
The applicant was represented by a migration agent from the time of his SHEV application on 19 December 2016 until the decision of the delegate on 7 March 2018. Shortly after, the Authority wrote to the applicant on 13 March 2018 to notify him of the referral to it. It appears the applicant’s migration agent wrote to the Authority on 15 March 2018 notifying it of his appointment as the applicant’s representative, and that appointment document was signed by the applicant on 10 March 2018.
Later, on 15 March 2018, the Authority responded to the applicant’s migration agent by email acknowledging receipt, and on 5 June 2018 the Authority wrote to the applicant’s migration agent attaching correspondence to her as the applicant’s authorised recipient. That correspondence included a letter to the applicant dated 1 June 2018 notifying him of the Authority’s decision made on that same date affirming the decision of the delegate not to grant the SHEV.
Application to this Court
As noted earlier, the applicant commenced these proceedings on 4 June 2021 and on 15 September 2021 a Registrar of this Court made orders, which included that the applicant file and serve any amended application and written submissions 28 days before any hearing. On 25 October 2021 this matter was brought into my docket and a listing notice was sent to the parties by email and post, listing it for hearing before me today. By reference to the Registrar’s orders, that gave the applicant 15 days in which to prepare the additional documents, but notwithstanding that timeframe the applicant did not file any documents in time, or at all.
The applicant appeared before me today by telephone from a corrections centre, where he has been since 2018. He engaged with the Court with the assistance of an interpreter in the Vietnamese language. At the outset of the hearing it became apparent that the applicant had nothing before him, including a paper and pen, which I gave him the opportunity to obtain so that he could more readily engage with the hearing. It then became apparent that the applicant also had no documents in relation to his case before him. He said that he had only received a bundle of relevant documents the previous day. There appeared to be some confusion in relation to when these documents were received by the applicant.
The Minister’s Counsel assisted by indicating that on 30 November 2021 the Minister’s solicitors had written to the email address that was provided on the application to this Court to confirm that all of the documents that they had been serving on the address for service provided by the applicant were being passed along to the applicant. I note that both the street address and the email address on the application to this Court do not appear to be those of the applicant. That is because the street address that was provided is an address in Southbank, Victoria and the applicant is, as I have previously noted, incarcerated at a corrections centre.
Further, the applicant confirmed that the email address on the application belongs to a Mr Phan. Mr Phan is said to have been engaged by the applicant’s wife to assist in the application to this Court. I have no evidence before me as to whether or not Mr Phan is a migration agent or a solicitor. If he is a solicitor, he has not filed a Notice of Address for Service in these proceedings and the documents that were filed in this Court say that they were prepared by the applicant, albeit the applicant says he has never met Mr Phan and everything has been done through his wife.
Having regard to s 175 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the applicant is not entitled to be represented by anyone other than a lawyer if he is not representing himself. In those circumstances it would probably have been preferable for the Minister’s solicitors to confirm earlier than they did that documents were being provided by Mr Phan to the applicant. In any event, the applicant was given time by me during a brief adjournment to go and locate all the documents he had in relation to his case and when the matter resumed we identified (after a considerable period of discussion) that the applicant had all relevant documents before him today.
The applicant said that he had not had an opportunity to read the Minister’s written submissions or had them read to him. As a result I asked the Minister’s Counsel to summarise those submissions when he addressed the Court orally, which he did for the benefit of the applicant.
By the application, the applicant provides the following grounds in support of the extension of time (errors in original):
1.Our Migration Agent did not do the job properly as he should have applied for review with Federal Circuit Court within 35 days from the date i received the decision from the Immigration Assessment Authority.
2.We assumed that we paid him for the best advice and options but he did not deliver. That was the reason we are lodging the application now.
The applicant also raises four grounds of review for determination in the event that the extension of time is granted, which are (errors in original):
1.The decisions made by the delegate of the Minister for Immigration to refuse my Application for Protection Visa Subclass 790 contain errors as they did not look into our circumstances thoroughly enough.
2.The decision of the member of Immigration Assessment Authority to affirm the decision to refuse my application by the delegate of the Minister for Immigration is unjust and not considerate.
3.The details of the decision are not reasonable considerations and lack of fair judgment. Therefore, the decision is not accurate and needs to be squashed
4.Both decisions are bias, lack of sympathy, compassion and humanity to our circumstances.
Extension of Time
There are no criteria prescribed by s 477 of the Act, the satisfaction of which constitute meeting the interests of the administration of justice: see SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46]. It is well established that the factors which should be taken into account in considering whether the interests of the administration of justice warrant time being extended include the following:
(a)the length of delay and whether there has been a reasonable and adequate explanation for it, noting that the weight of these factors in any given case can vary considerably: MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 at [15];
(b)whether there is any prejudice to the Minister; and
(c)whether the applicant’s substantive grounds seeking judicial review justify the extension of time, noting that “[w]hether that standard of veracity is described as being ‘arguable’; ‘reasonably arguable’, or ‘sufficiently arguable’ or having ‘reasonable prospects of success’”, the hurdle is relatively low: DHX17 v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 at [76]. The examination of the substantive grounds of review should not go beyond a reasonably impressionistic level: see DHX17 at [45] citing MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 (and in turn Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9]).
I outlined the above mentioned factors for the applicant at the start of the hearing, and then again separately during the course of oral submissions, so that the applicant had a chance to address each of them.
Explanation for Delay
In relation to the length of delay and explanation, the Minister’s written submissions say that the applicant’s Affidavit (which was purported to be made on 28 May 2021 but which I received as Exhibit “1A” because it had not been witnessed) is silent as to the explanation for delay. The Minister says that as a result, because the applicant gives no reason for the delay, the Court cannot be satisfied that the application has any explanation, let alone a sufficient one. While that is an accurate description of the Affidavit document, this submission ignores the fact that the application has provided some explanation under the heading “Grounds of Application for Extension of Time”.
As I noted earlier, that explanation apparently said that the applicant believed a migration agent should have applied for review within 35 days from the date on which he received the decision. In fairness to the applicant, I explored this explanation with him during the course of the hearing. I asked him whether he understood from this, as it appeared that he did, that he had 35 days in which to seek review. The applicant said he did not know the timeframe and that he had no idea. The applicant went on to say that he had only learnt in May 2021 that it was even possible to seek an extension of time. He was quite emphatic about the fact that he only discovered the possibility of seeking to extend time in May of this year.
The applicant said at that time he found a lawyer and he explained to Mr Phan that he had only just found out and asked that he file an application to the Court. The applicant said that he had not seen the application to this Court until yesterday. I confirmed with him that what he was saying was that, having only found out in May of this year that he could apply, he immediately sought out Mr Phan and that Mr Phan prepared the application for the applicant without him seeing it. When I then asked the applicant about the grounds under the heading “Grounds for an Extension of Time” and had those grounds interpreted to him, the applicant then changed what he was saying to me and sought to adopt the explanation that was in the application.
As I noted earlier, the applicant was in fact represented by a migration agent through the SHEV and Authority phases of the decision-making, and it is not beyond possibility that the applicant may have thought that his migration agent might continue to pursue his review rights or that he had even instructed the migration agent to do so. When asked about the explanation that was in the application, the applicant then gave quite a fulsome description and provided further detail which did actually accord with the explanation in the application. The applicant said that when he was rejected (by the “Federal Court”, the reference to that Court clearly being in error), he asked his migration agent, whom he correctly named by reference to the documents in the Court Book, to write a letter for the “appeal”. He says she told him that he was already out of time and there was nothing that could be done about it.
The applicant says that he and his wife paid this person $2,000 in order to continue pursuing their rights. Counsel for the Minister noted in submissions that this was not sworn evidence under oath, which is an accurate description, and the Minister relied on CXK17 v Judge of the Federal Circuit Court of Australia [2019] FCA 2089 at [21] and also EMT18 v Minister for Home Affairs [2019] FCA 1501 to say that even if this evidence had been given on oath, it was not a satisfactory explanation for a delay of this extent.
The Minister says that the reason given extends no further than similar circumstances that would face the usual type of difficulties for an applicant to this Court. I accept that, although I would add the fact that the applicant is incarcerated and not in any form of immigration detention does go beyond usual factors present in most migration matters before this Court, but I note that the applicant has not sought to rely on the fact of his incarceration as being a factor which delayed him in applying for review.
Even if the applicant did believe that his migration agent would continue to pursue his rights and even if he paid that person and gave them instructions to do so there is nothing before me, other than the applicant’s claim, to demonstrate the nature of any instructions and to corroborate that the agent was responsible for the failure of the applicant to apply in time. What I can see from the Court Book at page 140 is that on 31 May 2021, Mr Phan wrote to an email address which appears to be connected to the Department and requested a copy of the applicant’s refusal letter and decision records for his SHEV and provided an authority to receive the same.
It appears from the Court Book that Mr Phan was provided with the Authority’s decision on the same day, and it can be accepted that within a very short time (namely five days) this current application was made. The May 2021 date also accords with what the applicant said today, which was that he discovered that an extension of time application was possible in May of this year. In that regard, it can be seen, at least, that from the time that Mr Phan was consulted and received a copy of the Authority’s decision the applicant moved quite quickly; however, I do accept what the Minister says about the extent of the delay and its length. At 1064 days it is considerable.
The Minister says that the longer the delay, the more persuasive the explanation for it needs to be, citing Jess v Scott (1986) 12 FCR 187, which I note has been considered in a migration context by Wigney J of the Federal Court in Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]. Overall, the period of delay is considerable, and while the explanation for it may be plausible, on the material before me I am not persuaded that the delay has been adequately explained, and these factors weigh against the extension being granted.
Prejudice
In relation to prejudice, the Minister accepts that he will not suffer any relevant prejudice that could not be cured by a favourable costs order. The applicant did not address this other than to say that it would be fair to allow him to have an extension of time. The position in relation to prejudice somewhat ignores the usual principles relying on Re Commonwealth; Ex Parte Marks (2000) 177 ALR 491 at [16]-[17] that there is a public interest in the finality of administrative decision-making. However given that the Minister makes no such claim I will weigh prejudice as being a neutral factor in the exercise of my discretion.
Merit of proposed grounds
Turning to the question of merit, the Minister says that the Court would not be persuaded that the grounds have sufficient merit, even assessed at the requisite impressionistic level. The Minister notes each of the four grounds is unparticularised and they are, in fact, quite general. In the course of oral submissions I had each ground interpreted to the applicant so that he could address me and tell me what he wished to say in respect of each.
In relation to ground 1, which alleges that the decision made by the delegate to refuse the SHEV contain errors, because, “they did not look into our circumstances thoroughly enough”, at an impressionistic level, this is an allegation in respect of the delegate regarding which this Court has no jurisdiction pursuant to s 476(2)(a) of the Act. I told the applicant that I would consider this in relation to the Authority, given the Court did not have jurisdiction in relation to the delegate. When asked about this ground, the applicant said that the Authority should have considered his matter in a comprehensive way. The applicant also said that the decision of the Authority was rushed. In this last regard, I note that the referral was made in March 2018 and the decision was not made until June 2018 and, without more, this does not give rise to an arguable ground.
Even accepting that the applicant was intending to refer to the Authority by this ground, in my view, it is still not reasonably arguable. Counsel for the Minister in oral submissions says that except in exceptional circumstances, which this case is not, there is no general duty to inquire on the part of the Authority. That is so, and I will make reference to s 473DC(2) and Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [25]. Contrary to what the applicant says about the Authority’s decision and that it did not consider his claims in a comprehensive way, in my view, the Authority set out the applicant’s claims in full and considered them in detail. Absent further particularisation, I am not satisfied that this ground has sufficient merit to warrant an extension of time such that it could be considered at a final hearing.
In relation to grounds 2 and 3 the Minister says that these can be construed as seeking to challenge the merits of the Authority’s decision, which is an impermissible exercise for this Court. I would agree with that characterisation and say that, in any event, the generality of the grounds is such that they do not give rise to any reasonable prospect of success viewed at any level. The applicant, in addressing this ground, again referred to the decision being rushed, but again without more, I would again say that the timing of it does not give rise to any arguable ground. It may be accepted that the applicant is dissatisfied with the Authority’s findings and its ultimate decision, but even if time were extended, an allegation of that kind could also not give rise to a jurisdictional error. Accordingly, and again I emphasise taking this at a broad and/or impressionistic level, I am not persuaded that grounds 2 and 3 warrant the extension of time for their consideration.
In keeping with his obligations as a model litigant, the Minister has raised another possible interpretation of these grounds, although it could also equally be construed as arising under ground 1 by reference to s 473DC of the Act. Namely the Minister says quite generously that the applicant might be seeking to allege that the Authority acted in a legally unreasonable way by failing to exercise its discretion under that section, more specifically by failing to interview him in circumstances where there were some differences between the findings of the delegate and the findings of the Authority, being an error of the kind identified in ABT17 v Ministerfor Immigration and Border Protection (2020) 269 CLR 439.
The Minister says that if an allegation of this kind was sought to be raised there is no error in the present decision of the kind identified in ABT17, and that is because the Authority in this case did not reject an account given by the applicant in an audio recorded interview, “which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given”: see ABT17 at [25].
Instead the Minister says an error of the type identified in ABT17 does not arise because the Authority did not “reject an account given by [the applicant] in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given”: see ABT17 at [25]. Instead, the Authority’s rejection of the applicant’s claim to have been present during the incident at the house church on 1 August 2021 was based on:
(a)discrepancies between evidence in the applicant’s entry interview and SHEV application form (and his interview with the delegate) about the church house itself (which are not mentioned in the delegate’s reasons) – i.e. its location and whether it was his primary place of worship;
(b)the fact that country information (which was not before the delegate) did not support his claims in circumstances where:
(i)the date on which the incident occurred as stated in the applicant’s claims and the Priest Letter was inconsistent with country information; and
(ii)the applicant provided no independent evidence;
(c)it giving “limited weight” to the Priest Letter and the delegate’s reasons show she did not rely on this letter; and
(d)the fact that the applicant stated in his interview with the delegate that he had been beaten by authorities at the house church, but mentioned no such beatings in his SHEV application form – this discrepancy is not mentioned in the delegate’s reasons.
The Minister says that, accordingly, and in contrast to ABT17, the applicant’s presentation in the delegate’s interview did not have a significant bearing upon the Authority’s assessment on findings of credibility. I agree with those submissions and that there was no informational gap that was significant or central to the review being undertaken by the Authority.
So while the Minister was very proper to raise this potential issue, I am also not satisfied that, even if the applicant was seeking to raise it himself as a potential ground of review, time should be extended so that it could be considered, because against the facts and circumstances of this particular case, it would also not have a sufficient prospect of success that the extension of time would warrant its consideration.
To the extent that ground 3, by the use of the term “lack of fair judgment” may be seen to be seeking to raise an allegation of bias, then this is, in any event, addressed in ground 4, to which I will now turn.
Ground 4 alleges that, “Both decisions are bias, lack of sympathy, compassion and humanity to our circumstances”. Again, by reference to the expression “both decisions”, if the applicant is seeking to take issue with the decision of the delegate, then I again refer to s 476(2)(a) of the Act. When asked what he wished to say in relation to this ground, the applicant indicated that he had nothing to add to it.
Insofar as the bias assertions are levelled at the Authority, then I would accept the Minister’s submission that where such an allegation is made against an administrative officer it must be distinctly made and clearly proved: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69].
The use by the applicant of expressions such as “lack of sympathy, compassion and humanity” to his circumstances lead me to think that what was truly being alleged by the applicant is again a dissatisfaction with the findings and the outcome of the Authority’s decision, and while I have the utmost sympathy myself for that position, it does not give rise to a ground which, even at the most impressionistic level, could have a prospect of success sufficient to warrant consideration at a final hearing such that I would extend time for it to be so considered.
For the foregoing reasons I am satisfied that none of the substantive grounds of review sought to be raised by the applicant warrant an extension of time. Having regard to my assessment of the other discretionary factors, I am overall satisfied that time should not be extended and, accordingly, I conclude that the interests of the administration of justice do not require an extension of time in this case. I will order, pursuant to s 477(2) of the Act, that the application for an extension of time is refused.
Consequent upon my refusal of the extension of time, the Minister seeks an order that the applicant pay costs.
The Minister’s written submissions seek a scale amount in the sum of $7,853, and in oral submissions Counsel for the Minister says this is because the Minister has prepared for today’s hearing as though it were a final hearing. Counsel for the Minister also properly makes the concession that today was technically an interlocutory hearing, and there is a lesser amount provided by the Court scale for that. In that regard the Minister leaves himself in my hands.
I hear what the Minister says about preparation for the matter as though it were a final hearing. It is true that as this jurisdiction has evolved, the factors which require consideration in an extension of time hearing mirror (in large part), what would have to take place at a final hearing with a full consideration of the grounds, even if they are to be taken at an impressionistic level. While that is a different test, it does not require that one has regard to the grounds with any less thoroughness and the Minister was order to file written submissions. However, it does remain the case that an extension of time hearing is an interlocutory hearing, even to the extent that today’s Court list specifically says it is a hearing of an interlocutory application. While it may not be the case that any applicant would have regard to those legal technicalities, in fairness to the applicant, the costs amount should reflect the Court scale for the type of hearing for which at least on its face, it is listed.
In that regard, when I asked the applicant to address me in relation to costs I asked him to address me as to (a) the Minister’s entitlement to costs and (b) the amount of those costs, but on the basis that it was the Court’s scale amount for an interlocutory application, namely, $3,930.
The applicant said to me that he would have difficulty paying that amount. The applicant said that he is incarcerated and that his wife also has financial difficulties. While I accept that all of those matters may be so, I am satisfied that costs should follow the event and that the interlocutory scale amount is reasonable. Accordingly I order that the applicant pay the Minister’s costs in that amount.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 15 December 2021
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