BNG15 v Minister for Immigration

[2016] FCCA 2600

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNG15 v MINISTER FOR IMMIGRATION [2016] FCCA 2600

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application to extend time – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act1958 (Cth), ss.36(2)(a), 36(2)(aa), 48A, 48A(1), 48B, 48B(1),

48B(2), 476, 477(1), 477(2)

Cases cited:
Minister for Immigration and Border Protection v Kim [2014] FCAFC 47
SZRIQ v Federal Magistrates Courts of Australia [2013] FCA 1284

Applicant: BNG15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number: SYG 2083 of 2015

Judgment of: Judge Manousaridis

Hearing date: 28 September 2016

Delivered at: Sydney

Delivered on: 28 September 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondent:

Ms N Johnson of

Mills Oakley Lawyers

ORDERS

1. The application pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act is dismissed.

2. The applicant pay the respondent’s costs set in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2083 of 2015

BNG15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Before the Court is an application for an order under s.477(2) of the Migration Act1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by a delegate of the respondent (Minister) that the applicant’s application for a protection visa lodged on 12 June 2015 is invalid. The application under s.477(2) of the Act is necessary because the delegate made his decision on 17 June 2015 but the applicant did not file his application with this Court until 27 July 2015, that is to say five days outside the 35 day period prescribed by s.477(1) of the Act. I begin by identifying the facts out of which the application for extension of time arises.

2. The applicant is a national of Nepal. On 8 June 2011 he lodged an application for a protection visa.  The application was refused by a delegate of the Minister on 4 May 2012, and the Refugee Review Tribunal (Tribunal) affirmed the delegate’s decision of 4 May 2012. The Tribunal assessed the applicant’s claims for protection both against the Refugees Convention criterion specified in s.36(2)(a) of the Act and the complementary criterion specified in s.36(2)(aa) of the Act. The applicant unsuccessfully sought judicial review of the Tribunal’s decision in this Court, and unsuccessfully appealed to the Federal Court against this Court’s dismissal of that application, and further unsuccessfully sought special leave to appeal from the orders of the Federal Court dismissing his appeal from this Court.

3. On 12 June 2015 the applicant lodged a further protection visa application. By letter dated 17 June 2015 a delegate of the Minister informed the applicant that his application for a protection visa was not a valid application because of s.48A of the Act. Subsection 48A(1) of the Act provides:

   Subject to section 48B, a non-citizen who, while in the migration zone, has made:

   (a)  an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined);  or

   (b)  applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

   may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.

4. Subsection 48B(1) of the Act provides:

   If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.

5. Subsection 48B(2) provides that the power under s.48B(1) may only be exercised by the Minister.

6. In his letter of 17 June 2015 the delegate also stated that the applicant’s protection visa application which was lodged on 12 June 2015:

   Will be considered as a request for the Minister to exercise his public interest power under section 48B of the Act … to determine whether he should be referred to the Minister for his consideration.

7. By letter dated 6 July 2015 a member of the New South Wales intervention division of the Department of Immigration and Border Protection (Department) informed the applicant his case had been assessed against the relevant guidelines, that his case did not meet those guidelines, and, as a result, was not referred to the Minister for consideration under s.48B of the Act.

8. On 27 July 2015 the applicant filed in this Court an application for judicial review in relation to a migration decision. The migration decision the application identifies is that which was made by the delegate of the Minister in the letter dated 17 June 2015 to which I have already referred. There is no question that, had the applicant applied within the 35 day period prescribed by s.477(1) of the Act, this Court would have had jurisdiction to entertain the applicant’s challenge to the delegate’s decision. It therefore follows this court has jurisdiction to consider the applicant’s application for an extension of time under s.477(2) of the Act. Before I consider that application, however, it would be appropriate to set out the principles that should guide me in considering the application.

9. Under s.477(2) of the Act the Court may order the extension of the 35 day period if two things are satisfied. First, the application for such order has been made in writing to the Court specifying why the applicant considers it necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

10. In SZRIQ v Federal Magistrates Courts of Australia Foster J said:[1]

    The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

    (a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

    [1] [2013] FCA 1284 at [47]-[48]

    (b)     Whether there is any prejudice to the Minister;

    (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

11. I first turn, therefore, to the extent and explanation for the delay.  In the “grounds of application for extension of time” section of the application the applicant filed with this Court, the applicant states the following: 

    1.I applied for refugee due to my changes of circumstances being the earthquake in Nepal and the destruction of our home. The application was lodged on 12 June 2015.

    2.The Department replied to me on 17 June 2015 – Notification of invalid application but also that my application will be considered as a request for the Minister to exercise his public interest power under s.48.

    3.On 6 July 2015 the Department wrote to my stating that my case assessed against the Minister’s Guidelines and did not meet the Guidelines.

    4.I wish to exercise my right for review because I am stateless and a refugee.

12. These matters do not purport to give an explanation for delay or, to the extent they do, they do not provide an adequate explanation.  In written submissions the applicant, who is not legally represented, handed up to me today, the applicant submitted that he seeks an extension of time because of the exceptional circumstances of the earthquake which appears in Court Book page 94.  What is found at Court Book page 94 is a document titled “Statement of claim”, a copy of which the applicant attached to an affidavit he filed with the Court at the time he lodged his application for judicial review. The document refers to the reasons the applicant fears returning to Nepal and to the recent earthquake. These matters themselves do not afford any explanation for the applicant’s delay in lodging the application for judicial review in this Court. Before me the applicant said he was unaware of the 35 day limit prescribed by s.477(1). Assuming the applicant was so unaware, it nevertheless affords no adequate explanation for the delay.

13. Overall therefore I find the applicant has given no adequate explanation for the delay. 

14. Given the short period of the delay, however, the absence of an adequate explanation would count for very little if I were satisfied that the grounds on which the applicant would seek to challenge the delegate’s decision if an extension of time were granted in this case were reasonably arguable or sufficiently arguable to justify extending the time.  Whether the grounds are reasonably arguable or sufficiently arguable is a matter to which I now turn.

15. The application contains three grounds of review or more accurately it contains three paragraphs.  These are as follows:

    1The Department of Immigration ignored the changes of circumstances which took place after the earthquake in Nepal which took place in April 2015.

    2.I attach a statement of claim which the department failed to consider.

    3.The Department of Immigration failed to accord me natural justice and fairness.

16. None of these grounds is arguable. Subsection 48A(1) of the Act, in the circumstances in which it applies, is a bar to the making of an application for a protection visa unless the Minister personally exercises the power provided for by s.48B of the Act. The bar under s.48A of the Act applies if there are two circumstances. The first is where the applicant is a non-citizen who, while present in the migration zone, applied for a protection visa which has been refused. The second is that the applicant, while in the migration zone, made a further application for a protection visa.

17. There is no question the applicant had previously applied for a protection visa which has been refused.  He does not claim he was not in the migration zone at the time he made that application. The applicant also does not claim that he was not in the migration zone on 12 June 2015 when he lodged the application for a protection visa that is the subject of this application.

18. That the Department ignored changes of circumstances which took place after the earthquake in Nepal, in April 2015, or that the Department ignored the other matters contained in the applicant’s statement of claim, is irrelevant to whether or not s.48A of the Act applied. The delegate was not only entitled to ignore these matters; the delegate was, in fact, bound to ignore them.

19. Similarly, given the terms of s.48A of the Act, there is no occasion for any duty of natural justice to arise in connection with its operation. It does not purport to confer any discretion in any public official. Whether or not s.48A applies in any given circumstances is a matter of objective fact open to be conclusively determined by a court exercising appropriate jurisdiction:[2] 

    The consequence is that the validity of the visa application is a question which the Court should decide. It is of course competent for an officer, including the Minister, to form a view about the validity of a visa application for himself or herself but ultimately it is for the Court to resolve any controversy as to that question. We accept the appellant Minister's submission that an application for a visa is valid or not regardless of the Minister’s view, or any officer’s view, about the matter. We also accept the appellant Minister’s submission that a person who has made a valid visa application complying with the statutory requirements is at least prima facie entitled to mandamus to require the Minister to consider it.

    [2] Minister for Immigration and Border Protection v Kim [2014] FCAFC 47 at [27]

20. On the material that is before me there is no doubt that s.48A of the Act applies to prevent the applicant, while in the migration zone, from making a second application for a protection visa. The delegate made no error, jurisdictional or otherwise, in deciding that the applicant’s application for a protection visa, which he lodged on 12 June 2015, was not a valid application. It is beyond argument that he made no such error.

21. In his written submissions, the applicant contended that his previous application was not assessed against the complementary protection criteria provided for in s.36(2)(aa) of the Act. That is incorrect. As I have already noted, the Tribunal assessed the applicant’s application for protection against both the Refugees Convention criterion provided for by s.36(2)(a) and against the complementary protection criterion provided for in s.36(2)(aa) of the Act.

22. Finally, the applicant, in his written submissions, urges the Court to treat his application for a protection visa as valid because of his change of circumstances. That, however, is not possible because whether or not an application for a protection visa is valid depends on the operation of s.48A of the Act, and the changes of circumstances in which the applicant relies is not a matter relevant to whether s.48A applies.

23. Thus, if an order for extension of time were made under s.477(2), the applicant would have no arguable grounds for the relief he seeks. In fact, the applicant’s claim would be bound to fail. For these reasons, I am not satisfied it is necessary in the interests of the administration of justice that I make an order extending the 35 day period prescribed by s.477(1) of the Act. Accordingly, I propose to dismiss the application for an extension of time.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis.

Date: 10 October 2016