Bpu18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCCA 3351
•20 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPU18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2019] FCCA 3351 |
| Catchwords: PRACTICE & PROCEDURE – Whether time should be extended to the applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 477, 499 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 |
| Applicant: | BPU18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 878 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 20 November 2019 |
| Date of Last Submission: | 20 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2019 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Solicitor for the Respondents: | Julian Pinder (Minter Ellison) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 878 of 2018
| BPU18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By application filed on 23 April 2018, the applicant seeks that time be extended to her to seek judicial review of a decision of the Administrative Appeals Tribunal dated 2 August 2017 (“the Tribunal”).
Section 477(1) of the Migration Act 1958 (Cth) (“the Act”) provides that an application for judicial review must be filed within 35 days of the Tribunal's decision. However, s.447(2) of the Act provides that the Court may extend time to seek judicial of the Tribunal's decision if the Court is satisfied that it is necessary in the interests of justice to do so.
The applicant confirmed that she attended a directions hearing before a registrar of this Court on 23 April 2018, at which time the applicant was given leave to file and serve an amended application, any further evidence, and submissions in support of her application. I note that the applicant was, at that time, provided with the contact details of legal services providers and translating and interpreting services. The applicant’s application for an extension of time was set down for call-over on 13 June 2019 before me. The applicant attended the call-over before me, and on that occasion the applicant was directed to file and serve submissions, and the matter was set down for hearing of the applicant's application for an extension of time to seek judicial review, and if an extension of time was granted, then final hearing of the applicant's application for judicial review, both to be heard concurrently today before me if necessary.
The applicant was unrepresented before the Court today, although she had the assistance of an interpreter.
The factual background and the Tribunal’s decision are accurately set out in the first respondent's written submissions, as follows:
“B FACTUAL BACKGROUND
3. The applicant, a female citizen of Malaysia, arrived in Australia on 18 September 2019 as the holder of a Subclass 601 Electronic Travel Authority visa (CB 25, 27, 90).
4. On or about 5 December 2016, the applicant applied for a protection visa. The applicant claimed to have opened a small business, but that owing to a Malaysian economic and political downturn, people started to look for the applicant ‘to collect money starting from the contractor and wholeseller’ (CB 36). The applicant claimed that she felt her 'destiny' was to leave Malaysia, that she was 'comfortable and feel welcome' in Australia, and that she wanted to remain until the 'situation cool down' (CB 37). She alleged that she could not relocate as Malaysia is a small country. The delegate found that there was no information to suggest the applicant would be targeted on her return to Malaysia for any reason under paragraph 5J(1)(a) of the Act (CB 92). The delegate was not satisfied that the applicant met the refugee criterion under paragraph 36(2)(a), or the complementary protection criterion under paragraph 36(2)(aa) (CB 97).
5. On 6 March 2017, a delegate of the first respondent (the delegate) refused to grant the applicant a protection visa (CB 87).
6. On 9 March 2018, the applicant lodged an application for review of the delegate's decision before the Tribunal, attaching a copy of the delegate's decision record (CB 108; see also item 6 to index to Court Book filed 18 May 2018).
7. By email dated 3 July 2017, the applicant was invited to attend a hearing before the Tribunal, scheduled for 26 July 2017, to give evidence and to present arguments relating to the issues in her case (CB 118).
8. On 26 July 2017, the applicant appeared at a hearing before the Tribunal, assisted by an interpreter in the Malay language (CB 133).
9. On 2 August 2017, the Tribunal emailed the applicant its decision, dated 2 August 2017, affirming the delegate's decision not to grant the applicant a protection visa.
C TRIBUNAL DECISION
10. The Tribunal recorded the applicant's protection claims, as contained in her protection visa application, and further discussed at hearing (CB 143, at [12]).
11. The Tribunal recorded that the applicant 'did not suggest that she faced any harm, or threat of harm, in Malaysia such as could reasonably be considered to amount to serious harm or persecution' (CB 143, at [16]). The Tribunal found there was 'no evidence in this case of persecution of the applicant or even threats of persecution', including for any reasons under paragraph 5J(1)(a) of the Act (CB 143, at [18]).
12. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution and found the applicant did not meet the refugee criterion under paragraph 36(2)(a) of the Act (CB 144, at [19]-[20]).
13. Reliant on its earlier findings of fact, the Tribunal was not satisfied that the applicant met the complementary protection criterion (CB 144, at [24]-[25]).”
I explained to the applicant that of particular significance to the Court this morning, in considering her application for an extension of time, would be the length of the delay, her explanation for the delay and the prospects of success of her substantive application for judicial review.
The applicant confirmed that she relied, for her explanation, on her affidavit filed with this Court on 29 March 2018 in the following terms:
“1. Contesting the decision made by the Administrative Appeals Tribunal in regard not grant protection visa.
2. Seeking humbly and deeply appologies to review my case for second time to reinstate to A.A.T for humanitarian ground and for the sake of justice.”
(Errors in original)
The applicant's affidavit was interpreted for her and she confirmed that that was the total of her explanation.
The grounds of judicial review upon which the applicant relies are set out on her initiating application, filed on 23 April 2018, are as follows:
“1. Greatly requesting and begging for apology and pardons to federal circuit court of australia to review and reinstate my application to administrative appeals tribunal (A.A.T).
2. Review my case on merit basis to A.A.T for second time to reconsider my situation of financially and economically.
3. For the sake of justice, humbly, requesting to reinstate my case to A.A.T after reconsidering my situation of economically and literally situation.”
(Errors in original)
Those grounds were interpreted to the applicant, and she was invited to say whatever she wished in support of those grounds and in support of her application generally. The applicant had nothing to say.
The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established. Those principles are the length of the delay; the explanation for the delay; the presence or absence of prejudice to the respondent; and, the prospects of success of establishing jurisdictional error in the Tribunal’s decision.
In SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at 451 [46] – [48], Foster J noted that s.477 of the Act did not set out any particular criteria which must be satisfied as part of the concept of the interests of the administration of justice, but identified factors which a Court will ordinarily take into account, which includes:
i)Whether there has been a reasonable and adequate explanation for the delay.
ii)Whether there is any prejudice to the Minister.
iii)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176 (“Hunter Valley”); SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 (“SZNYE”) at [16] per Katzmann J). In MZABP v Minister for Immigration & Ors [2015] FCA 1391 at [63], Mortimer J stated relevant principles that were approved by the Full Court of the Federal Court of Australia in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [21] per Tracey, Perry and Charlesworth JJ, as follows:
“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.”
The solicitor for the first respondent opposed an extension of time on three bases:
i)The extent of the delay.
ii)The inadequacy of the explanation provided by the applicant as disclosed in the Court Book, filed on 18 May 2018, and marked Exhibit 1R.
iii)The lack of prospects of success of the application for judicial review.
(i) The extent of delay was some 204 days. That, on any standard, is a significant delay.
If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] per Murphy J; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J; SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 (“SZSDA”) at [39] per Foster J).
It is also well established that the longer the delay, the more persuasive the explanation needs to be (see Jess, M.P. v. Scott, R.T. & Ors (1986) 12 FCR 187 at 195 per Lockhart, Sheppard & Burchett JJ).
(ii) In relation to the applicant's explanation for her delay, Exhibit 1R disclosed that the applicant had, on five previous occasions, lodged applications for review with the Administrative Appeals Tribunal in respect of the decision of a delegate of the first respondent on 6 March 2017 (“the Delegate”) which refused the applicant a protection visa. On each occasion, an information sheet was provided to the applicant, and each information sheet advised the applicant that the Administrative Appeals Tribunal had no jurisdiction to review the Delegate’s decision. The information sheet advised the applicant that she could seek judicial review of the Tribunal's decision by way of an application to this Court, and that such application must be lodged within 35 days of the date of the Tribunal's decision.
The filing by the applicant of five subsequent applications for review by the Administrative Appeals Tribunal is somewhat extraordinary in circumstances where, on each occasion, the applicant was informed that the Administrative Appeals Tribunal had no jurisdiction to review a decision, and informing her of her judicial review rights in this Court. In any event, it is well established that ignorance of Court processes without any further justification is not generally regarded as a satisfactory explanation for delay (see SZSDA at [38] per Foster J).
In the circumstances, whilst the applicant has provided an explanation for the 204 day delay in seeking judicial review of the Tribunal's decision dated 2 August 2017, that explanation is unsatisfactory and inadequate.
(iii) The third ground of opposition by the first respondent is the prospects of success of the application to this Court for judicial review of the Tribunal's decision.
In considering the prospects of success of the applicant's application for judicial review, none of the grounds upon which the applicant relies identify any error capable of review. I explained to the applicant, this Court has no power to reconsider the applicant's claims and conduct a merits review hearing. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
Turning to the decision of the Tribunal itself, the Tribunal noted that the applicant is a citizen of Malaysia who arrived in Australia on 18 September 2016 and lodged her protection visa application on 2 September 2016. The Tribunal noted that on March 2017, the Delegate refused to grant the visa.
By letter dated 3 July 2017, the Tribunal advised the applicant that her application for review had been considered and that, on the material before the Tribunal, it was unable to make a favourable decision on that information alone. The letter invited the applicant to attend a hearing before the Tribunal to give evidence and present arguments relating to the issues in her case. The applicant duly appeared before the Tribunal on 26 July 2017 to give evidence and present arguments in her case with the assistance of an interpreter. The letter also invited the applicant to send any additional information that she wished to be considered. There is no evidence before this Court of any further information provided by the applicant to the Tribunal in support of her application.
That letter of invitation is contained in Exhibit 1R and discloses that the Tribunal complied with the relevant statutory scheme in inviting the applicant to attend a hearing.
The Tribunal then set out the relevant criteria for a protection visa in s.36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth). The Tribunal referred to the relevant law in its consideration. The Tribunal also referred to the mandatory considerations provided in Ministerial Direction No.56 made under s.499 of the Act; noted that it had regard to the relevant country information assessments prepared by the Department of Foreign Affairs and Trade; and, had regard to the relevant Guidelines.
The Tribunal then considered the main issue before it, that is, whether the applicant is entitled to a protection visa as a refugee or whether she met the complementary protection criterion in s.36(2)(aa) of the Act. The Tribunal referred to the applicant's claims in her protection visa that she had a shoe stall in a local market in Malaysia where she had been verbally humiliated, when she was unable to pay her debts. The Tribunal noted that in her protection visa application, the applicant claimed that she and her family had been threatened.
The Tribunal then noted at the hearing before it, the applicant said that her family was not threatened or intimidated and that only she had been so threatened and intimidated. The applicant said that she had escaped from Malaysia because of repeated demands to repay the money she owed. The Tribunal noted that it put to the applicant that there were courts in Malaysia for arbitrating business disputes and noted the applicant's response that she preferred to run away.
The Tribunal then noted that the applicant did not suggest that she faced any harm or threat of harm in Malaysia, such as could reasonably be considered to amount to serious harm or persecution. Based on the evidence before it, the Tribunal concluded that the applicant did not meet the Convention criteria.
The Tribunal then went on to consider whether the applicant met the complementary criterion. The Tribunal noted the applicant's claims for complementary protection were essentially the same as those she made for protection as a refugee. On the evidence before it, the Tribunal was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
Accordingly, the Tribunal found that the applicant did not meet either the Convention criteria or the complementary criterion and affirmed the decision under review.
The Tribunal's findings would appear to be open to it on the evidence and material before it and for the reasons it gave. Those findings were relevantly probative of the issues before the Tribunal, were logical, and were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
It is well established that in deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time and exercise in futility (see Hunter Valley; SZNYE).
The first respondent does not suggest that they would suffer any prejudice if time was extended. However, it is also well established that the mere absence of prejudice itself is not sufficient to grant the applicant an extension of time (see Hunter Valley at [21] per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ).
The Court should also have regard to the significant public interest in the finality of administrative decisions (see Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 at [15]-[17] per McHugh J).
In balancing all those factors, in particular, the lack of prospects of success of the applicant's substantive application for judicial review, whilst I make no final determination as to whether or not the decision is affected by a jurisdictional error, none is apparent on the grounds of the application or the face of the Tribunal's decision record, and none has been raised by the applicant.
In the circumstances, it is not necessary in the interests of justice that time be extended to the applicant. The application should be dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Deputy Associate:
Date: 26 November 2019
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Appeal
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Standing
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