BUQ15 and Ors v Minister for Immigration; and Anor; [
[2017] FCCA 1622
•13 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUQ15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [ [2017] FCCA 1622 |
| Catchwords: MIGRATION – Application for extension of time under s.477(2) of the Migration Act 1958 (Cth) – application refused. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.25C Migration Act 1958 (Cth), s.477 Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.05(2) |
| Cases cited: AZAFXv Federal Circuit Court of Australia (2016) 244 FCR 401; [2016] FCA 1139 BVJ16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 178 SZTES v Minister for Immigration and Border Protection [2015] FCA 719 SZUGL v Minister for Immigration and Border Protection & Anor [2017] FCCA 419 |
| First Applicant: | BUQ15 |
| Second Applicant: | BUR15 |
| Third Applicant: | BUT15 |
| Fourth Applicant: | BUS15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2451 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 14 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2017 |
REPRESENTATION
| Solicitors for the Applicants: | Adrian Joel & Co |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2451 of 2015
| BUQ15 |
First Applicant
| BUR15 |
Second Applicant
| BUT15 |
Third Applicant
| BUS15 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicants, citizens of Pakistan, seek review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the First Respondent not to grant them protection visas.
The Applicants arrived in Australia in December 2010. On 22 April 2013 they applied for protection visas. The Second, Third and Fourth Applicants are the First Applicant’s husband and children. They applied for protection as members of her family unit. On 13 March 2014 the delegate refused the application.
The Applicants sought review by the Tribunal. They attended a Tribunal hearing. On 22 January 2015 the Tribunal affirmed the decision under review.
The Applicants sought review of the Tribunal decision by application filed in this court on 7 September 2015. Hence they require an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act).
In essence, the Applicants claimed to fear harm as a result of the vocal opposition of the First Applicant’s brother to Islamic extremism and his marriage to a Pakistani woman who worked for the United States Air Force. Among other things, they claimed that the brother and the Second Applicant were assaulted, that subsequently the First and Second Applicants were subject to threats and the Second Applicant was kidnapped and that as a result the family came to Australia for protection. They claimed that they had not intended to apply for protection and wished to obtain skilled visas, but were unable to do so after their student visas were cancelled as a result of the provision of fraudulent documents.
The Tribunal was not satisfied the Applicants had given a truthful account of their experiences in Pakistan, their reasons for leaving or their reasons for claiming Australia’s protection. It was of the view that following a decision of the former Migration Review Tribunal in March 2013 to affirm the cancellation of the First Applicant’s student visa, the Applicants had sought to fabricate claims in an attempt to remain in Australia where the Second Applicant had employment and their first child was in primary school.
The Tribunal gave detailed reasons for its lack of satisfaction as to the credibility of the Applicants’ claims. It did not accept that the Applicants met the Refugees’ Convention criterion or the complementary protection criterion on any other basis.
For the purposes of the present decision it is not necessary to consider further the Tribunal’s findings and reasons, as the only ground now relied on relates to the validity of the Applicants’ protection visa application.
Under s.477(1) of the Act a judicial review application must be filed in this court within 35 days of the date of the Tribunal decision. In this case the application was not filed until after six months beyond the time limit in s.477(1) of the Act.
Under s.477(2) of the Act, the Court may extend this time if an applicant has made an application for an extension of time in writing specifying why it is necessary in the interests of the administration of justice that time be extended and the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
In their application of 7 September 2015 the Applicants (who at that time were self-represented) sought an extension of time in writing. They filed a supporting affidavit addressing the reason for delay and the interests of the administration of justice. They subsequently obtained legal representation and filed an amended application on 4 August 2016 which omitted any application for an extension of time. However on 11 August 2016 a registrar listed the matter for hearing of the application for an extension of time. In submissions filed the day before the scheduled hearing of the application for an extension of time, the solicitor for the Applicants addressed issues relevant to such an application. It was explained that the Applicants did seek an extension of time.
On 15 June 2017 a further amended application was filed (with leave) which included an application for an extension of time. Under the heading “Grounds of application for extension of time” it was stated “Preservation of entitlement to appeal”. There were also minor amendments to the substantive ground of review as canvassed at the hearing. The Applicants did not rely on any affidavit evidence in support of their application for an extension of time.
The First Respondent submitted that the application for an extension of time could be seen as incompetent on the basis that there was non-compliance with the requirements of r.44.05(2) of the Federal Circuit Court Rules 2001 (Cth) (the Rules). Rule 44.05(2) requires an application to be supported by an affidavit including, if an extension of time is sought, evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension. This submission was put on the basis that the Applicants did not rely on the affidavit filed in support of their application, so that it could be said that the application was not supported by an affidavit. However, such an affidavit was filed, albeit that the Applicants now do not rely on any explanation for delay or other evidence provided in that affidavit. If (contrary to my view) these circumstances could be seen as a technical non-compliance with the requirements of r.44.05(2)(c), I would, in the interests of justice, dispense with compliance with that rule pursuant to r.1.06 of the Rules. Insofar as there may be a broader argument as to whether the requirements of s.477(2)(a) of the Act were met (based on the deficiencies in the amended application filed on 4 August 2016), the original application and the further amended application both contained an application for an extension of time in writing specifying why the Applicants considered it was necessary in the interests of the administration of justice to make the order sought. The original application was supported by an affidavit. I am not persuaded that the application for an extension of time is incompetent.
In SZTES v Minister for Immigration and Border Protection [2015] FCA 719, Wigney J outlined the principles in relation to extension of time applications. As his Honour pointed out, s.477(2) of the Act does not define or confine the matters to which the Court shall have regard when considering an application for an extension of time. However several factors are ordinarily taken into account, including the extent of the delay and whether there has been a reasonable and adequate explanation for that delay; whether the applicant’s substantive case is sufficiently arguable to support the application for an extension of time; whether there is any prejudice to the respondents; the impact on the applicant; the interests of the public at large; and the Court’s discretion. It has also been suggested (see AZAFXv Federal Circuit Court of Australia (2016) 244 FCR 401; [2016] FCA 1139) that it is relevant to take into account the fact that there is no right of appeal from a decision of this court refusing an application for an extension of time.
I have borne in mind that, as Mortimer J explained in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [63] (referred to with approval by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110), in considering the merits of a case and, in particular, whether a case is “reasonable arguable”, “sufficiently arguable” or has “reasonable prospects of success” it is not generally appropriate to investigate fully the merits of the substantive case (also see SZTES at [49]).
In this case the only “explanation” now proffered for the delay in making the application is in fact an explanation for the delay in filing the amended application. It was claimed in submissions that the Applicants did not know and could not know of the existence of a possible claim as to invalidity of the protection visa application within the 35 day period from the date of the decision of the Refugee Review Tribunal as the complexity of such a position became known only as a result of legal advice during 2016 which resulted in the commencement of a series of actions.
I am not satisfied that the Applicants have provided a reasonable and satisfactory explanation for the delay in commencing these proceedings. Rather, they have provided an explanation for why they sought to rely on a fresh ground in the amended application filed on 4 August 2016. However the delay that is relevant for present purposes is the delay between the 35 day period after the Tribunal decision and the time of filing of the application in September 2015. This delay, of over six months, is extensive. The fact that in 2016 the Applicants became aware of a possible new legal argument does not explain that delay.
As indicated, in the original application an extension of time was sought on the basis that the delay was due to the fact that the Applicants did not have enough funds to lodge the application, although they subsequently borrowed money which enabled them to do so. It appears from Mr Joel’s submissions that the Applicants no longer rely on this explanation. In any event, if there was an intention to rely on a claimed lack of funds in relation to the delay prior to the filing of the review application, I am not satisfied that such a claim is in itself an adequate explanation. There is no evidence as to whether the adult Applicants were aware of the time limit on filing review applications or as to whether they sought a waiver of the filing fee.
In addition, and in any event, the substantive application does not enjoy sufficient merit to warrant or support an extension of time.
While expressed across a number of paragraphs there is in effect one ground relied on by the Applicants in the further amended application filed on 15 June 2017. It is as follows:
3. The decision of the Tribunal is challenged by virtue of the invalidity of the Protection Visa decision made on 13th March 2014 that was considered by the tribunal.
4. A Tribunal has the power to rectify administrative error that many contaminate a primary decision. However, such power does not encompass the capacity to usurp the necessary procedures to be implemented so as to effect lawful decision making.
5. Thus the judicial review of the Second Respondent encompasses the review as to validity of the decision made by the First Respondent.
6. The Delegate of the Respondent made a jurisdictional error by failing to exercise jurisdiction.
a. at the time of the application, the version of Form 866 used by the Applicants had been approved by the Minister under reg.1.18(1) of the Migration Regulations 1994 (Cth) (Regulations) after item 1401 of Schedule 1 to the Regulations took effect on 20 October 1999;
b. Item 1401 of Schedule 1 to the Regulations, by virtue of Section 49A(1)(b) of the Acts Interpretation Act 1901 (Cth) as at 20 October 1999 (Interpretation Act) was prohibited from incorporating Form 866 as it existed after item 1401 took effect. Item 1401 was restricted to incorporating Form 866 to the extent it existed when item 1401 took effect on 20 October 1999;
c. As a result, by virtue of Section 46 of the Act when read with ref (sic) 2.07 of the Regulations and notwithstanding Section 25C of the Interpretation Act when read with Section 13(1) of the Legislation Act (sic), the application was invalid.
It appears from the Applicants’ reference in submissions to previous decisions of this court that the argument is in essence that Item 1401 in Schedule 1 to the Migration Regulations1994 (Cth) (the Regulations) (which specifies the form to be used for a protection visa application) is to be construed as incorporating into the Regulations the whole of Form 866 as it stood at the time that Item first came into effect (on 20 October 1999). On this basis it is contended that later versions of Form 866 are not incorporated and for that reason are not valid forms so that the 2013 protection visa application was invalid.
It is apparent from the Courtbook that the 2013 protection visa application was made on Parts B, C and D of a Form described as Form 866 (design date 11/12). The First Respondent relied on an affidavit of Andrew Lyall Keevers affirmed on 14 June 2017 annexing a copy of the version of the application for a protection visa (Form 866) that was approved as at 20 October 1999 (version 06/98 of Form 866, design date 06/98). The relevance of this evidence is considered further below.
The Applicants accepted that the argument they sought to rely on in this case (which, it has to be said, was not elaborated on in either their written or oral submissions) had been comprehensively rejected by Judge Street in BVJ16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 178; CFA16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 278; SZUTU v Minister for Immigration and Border Protection & Anor [2017] FCCA 593 and by Judge Dowdy in SZUGL v Minister for Immigration and Border Protection & Anor [2017] FCCA 419.
The ground in issue in BVJ16 was in the same terms as the version in the amended application filed in these proceedings on 4 August 2016. Oddly, both those grounds involved a contention that the protection visa application was “not” invalid but, as clarified in submissions, it is apparent that it was intended to be submitted that there was no valid protection visa application because a post-October 1999 Form 866 had been used. That was the argument addressed in BVJ16.
The solicitor for the Applicants acknowledged that, as the First Respondent had pointed out, in BVJ16 Judge Street had held that Item 1401 of Schedule 1 to the Regulations could not be construed as fixing a specific form at the time it was made because to do so would be “…contrary to the statutory scheme and contrary to the intention manifested under s.495 of the Act including the power in relation to the making of approved forms by the Minister in reg.1.18 of the Regulations, as well as reg.2.07 of the Regulations” (at [27]). It was also acknowledged that after considering the relevant statutory scheme, Judge Street had concluded (at [28]):
It is of considerable importance in reg.2.07(3) of the Regulations that the reference there, is to “an approved form”. There is no intention manifest from the statutory scheme, context, or language that supports a construction that there must be a singular form or a fixed and frozen form. Moreover, the reference in reg.2.07(1) to “the approved form”, expressly incorporates and assumes the capacity to exercise the powers under s.495 of the Act and reg.1.18 of the Regulations.
His Honour also held at [33]:
… The reference to the Form 866 in item 1401 of schedule 1 to the Regulations was not a reference to the approved form, but rather a bare reference to Form 866. That Form 866 was not capable of becoming a mandatory fixed criteria unless and until the subject of the exercise of the power under s.495 of the Act, so as to be an approved form. The regulations and Item 1401 of Schedule 1 should be read in harmony and should not be construed as specifying the Form 866 as at 20 October 1999 as a criterion for validity.
Judge Street reached the same conclusion in CFA16, also suggesting that there was, in any event, substantial compliance with the requirement to use an approved form. SZUTU was a review of a delegate’s decision, but his Honour reached the same view in relation to validity of the visa application.
In SZUGL Judge Dowdy considered a ground which raised the same issue as the ground relied on in this case. His Honour referred with approval to the view of Judge Street in BVJ16 and rejected the Applicant’s arguments as “strained and artificial and if accepted … likely to result in unintended and absurd results” (at [28]).
In SZUGL Judge Dowdy went on to find that MZAIC v Minister for Immigration and Border Protection (2016) 237 FCR 156; [2016] FCAFC 25 was authority for the proposition “…that although not said to be strictly applicable to approved forms, s 25C of the Acts Interpretation Act, subject to a contrary intention, applies both to the arrangement of the material on a form, and also to the content of that material: see MZAIC at 165 [30]” (SZUGL at [47]) and that no provision of the Migration Act or Regulations evinced a contrary intention such as to preclude the application of s.25C or the common law of substantial compliance in relation to use of the 2012 version Form 866 (also see Nicovations Australia Pty Ltd v Secretary, Department of Health (2016) 338 ALR 429; [2016] FCA 394 at [74]-[75]). Judge Dowdy was of the view that even if it were the case that the applicant should have used the 1999 Form 866 rather than a 2012 Form 866, that would not, as a matter of statutory construction, necessarily render invalid and of no effect a protection visa application made by the applicant on the 2012 form (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 392; [1998] HCA 28 at [97] per McHugh, Gummow, Kirby and Hayne JJ and SZUGL at [50]).
The solicitor for the Applicants submitted, without elaboration, that the Applicants relied on the arguments that had been advanced on behalf of the applicants in BVJ16, CVF16 and SZUGL and maintained that Judge Street and Judge Dowdy had “erred” in rejecting those arguments. Mr Joel did not address such arguments or explain the basis for this contention beyond referring to the fact that there was an appeal (on undisclosed grounds) from Judge Street’s decision in BVJ16 and submitting that the relevant issue of law was “plainly capable” of being distinguished from the “cabal of cases dealing with substantial compliance over recent years”.
It was not submitted that any of the decisions in BVJ16¸ CFA16 and/or SZUGL were plainly wrong. The Applicants accepted that “as a matter of judicial comity [this] Court in this case is in effect bound to apply the reasoning in those cases and to again reject the arguments which the applicants intended to have put to the Court.” It was contended that an extension of time should be granted because the Applicants wished to preserve their position in the event they were minded to bring an appeal to the Federal Court of Australia. This submission was apparently put on the basis that if I granted an extension of time I would nonetheless dismiss the application on its merits having regard to principles of judicial comity.
It was submitted that there was “merit” in the application for an extension of time because the consequence of dismissal of the application for an extension of time would be to “extinguish” the capacity of the Applicants to be exposed to the benefit of the current Federal Court review of the issues raised in the ground relied on.
The First Respondent submitted that the reasoning in BVJ16, CFA16, SZUTU and SZUGL was plainly correct and that the proposed ground of review was misconceived. It was also submitted that even if the 2012 version of Form 866 was not validly approved, the principle of substantial compliance would apply (see SZGMEv Minister for Immigration and Citizenship (2008) 168 FCR 487; [2008] FCAFC 91).
It is not appropriate to determine such an issue in the present context, but I note that in MZAIC Kenny, Tracey, Robertson and Mortimer JJ held (at [22]), applying s.25C of the Acts Interpretation Act 1901 (Cth), that in the context of the requirement to use an “approved form” (which in that case related to an application for review by the Refugee Review Tribunal), the use of a version of the form which was no longer approved would not invalidate the application, so long as there was substantial compliance. Such reasoning was said to be apposite in this case. The Applicants did not suggest any basis on which such an approach would not apply. In that respect the First Respondent drew attention to the similarity between Parts B and C of the version of Form 866 completed by the Applicants and Parts B and C of the version of Form 866 annexed to Mr Keever’s affidavit in support of the contention that the completed form substantially complied in form and content with the 1999 Form.
As the Applicants acknowledged, and as pointed out by the First Respondent, in SZSGC v Minister for Immigration and Border Protection & Anor [2017] FCCA 1083 Judge Driver refused an application for an extension of time in a matter in which the applicant had relied on essentially the same ground of review as in the present case. In considering such a proposed ground his Honour made the point that no decision of this court had accepted the argument sought to be advanced by the applicant and that there were several decisions to the contrary. Judge Driver continued at [18]:
In order to grant an extension of time, I would need to be persuaded that there was a real argument that the decisions of this Court which have already dealt with the issue are clearly wrong. That is because, were an extension of time granted and the matter proceed to a final hearing, judicial comity would direct me to follow the earlier decisions unless I was satisfied that those decisions are plainly wrong.
His Honour referred to the First Respondent’s submissions as to validity of the protection visa application, but found it sufficient to conclude that he accepted that the prior decisions were “if not correct… at least not clearly wrong” and stated that he was not persuaded that Item 1401(1) of Schedule 1 to the Regulations did any more than prescribe a form number, as opposed to a complete form (at [20]). Judge Driver was not persuaded that the argument sought to be advanced raised an issue sufficient to warrant an extension of time within s.477(2) of the Act.
In the context of an application for an extension of time it is not necessary or appropriate for me to reach a concluded view in relation to the detail of the First Respondent’s submissions about the validity of the protection visa application. The Applicants did not make submissions in support of the proposed ground beyond referring to other applicants’ unsuccessful arguments in the earlier cases (without elucidation). The Applicants did not submit that the earlier cases were plainly wrong or advance any reasonable arguable contentions contrary to the views reached in these cases. They accept that as a matter of judicial comity this court would follow the reasoning of the earlier cases.
While the merits of a proposed ground are to be considered at a “reasonably impressionistic level” (MZABP at [62] per Mortimer J) in the context of considering an application for an extension of time, the Applicants’ bare assertion that judges of this court “erred” in rejecting arguments advanced by other applicants in relation to grounds akin to the proposed ground of review does not satisfy me that such ground is reasonably arguable.
I am not persuaded by the Applicants that there is a real argument that the decisions of this court which have rejected the arguments sought to be relied upon by the Applicants are clearly wrong. Nothing in the Applicants’ submissions raised any basis on which it could be said that the unsuccessful applicants’ arguments in those earlier cases (insofar as they can be discerned from the judgments in question) were reasonably arguable. Nor, more generally, has it been established that the ground sought to be relied upon is sufficiently arguable such as to support the application for an extension of time on the basis that it is necessary in the interests of the administration of justice.
I have had regard to all the circumstances, including the fact that there is no right of appeal from a decision refusing an application for an extension of time (although judicial review is available) and the circumstances of the Applicants, in particular the possible loss of the right to apply for bridging visas to enable them to remain lawfully in Australia for a further period on the basis of current judicial review proceedings, including while the issue in BVJ16 is determined by the Federal Court. Had the Applicants proposed any basis on which a contrary view in relation to validity of the protection visa application might be taken on appeal, there may have been more force in this contention. I have had regard to the prospect of the Applicants’ return to a country in which they claim to fear harm. I have also taken into account the argument raised for the Applicants in relation to their wish to “preserve their position” in the event that they are minded to bring an appeal to the Federal Court. This assumes that on a final hearing this court would dismiss their application. It also assumes merit in the invalidity argument without an elaboration that can be assessed, even on an “impressionistic” level. There is no suggestion of prejudice to the Minister.
In all the circumstances of this case, having regard, in particular, to the absence of any reasonable and adequate explanation for the delay in commencing these proceedings and the fact that I am not satisfied that the ground relied on by the Applicants is sufficiently arguable to support the application for an extension of time, I am not persuaded that it is necessary in the interests of the administration of justice to grant an extension of time. The application for an extension of time should be refused.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 13 July 2017
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