BUQ19 v Minister for Home Affairs
[2019] FCCA 2496
•6 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUQ19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2496 |
| Catchwords: PRACTICE & PROCEDURE – Application for an extension of time in which to make a competent application – whether it is in the interests of the administration of justice to extend time – application refused. PRACTICE & PROCEDURE – Application in a case to reinstate – whether there is satisfactory explanation for non-appearance – whether the first respondent would be prejudiced – whether the substantive application has prospects of success to warrant reinstatement in the interests of justice – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473DA, 473GA, 473GB, 476, 477, 486E, 486F, 486G, 486I, pt.7AA div 3 Federal Circuit Court Rules 2001 (Cth), rr. 2.07A, 2.07B, 9.03, 13.03C, 16.05 |
| Cases cited: Autodesk Inc v Dyason (No.2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270; (1993) 111 ALR 385; (1993) 25 IPR 33 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 AZAFN v Minister for Immigration and Border Protection (No 2) [2016] FCA 305 SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442; (2013) 139 ALD 252 SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201; (2016) 154 ALD 316 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 |
| Applicant: | BUQ19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATON ASSESSMENT AUTHORITY |
| File Number: | SYG 1060 of 2019 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 22 August 2019, 27 August 2019 |
| Date of Last Submission: | 27 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2019 |
REPRESENTATION
| Representative for the Applicant: | In person |
| Representative for the Respondent: | Ms S. Lloyd |
| Solicitors for the Respondents: | HWl Ebsworth Lawyers |
ORDERS
The name of the first respondent is amended to read ‘Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs’.
The application in a case made on 11 June 2019 is dismissed.
The solicitors of the first respondent to write to Mr Mohammed Algalele of Algalele and Co. Solicitors by letter sent by email to the email address provided by Mr Algalele in the application in a case and by express post to the post office box address provided by Mr Algalele in the application in a case on or before 5pm on 6 September 2019 and provide Mr Algalele with a copy of this judgment and the Court’s orders.
The first respondent’s application for costs is set down for hearing at 9:30am on 13 September 2019 before Judge Nicholls at Court 8.2, Level 8, 80 William Street, Sydney.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1060 of 2019
| BUQ19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an Application in a Case (“AIC”) made on 11 June 2019 to reinstate an application made to this Court on 29 April 2019 pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) seeking an extension of time within which to make a competent application pursuant to s.476 of the Act. The applicant sought review of the decision of the Immigration Assessment Authority (“the IAA”) made on 19 February 2019 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a Safe Haven Enterprise Visa (“SHEV”), a protection visa, (“the visa”) to the applicant.
In evidence before the Court is:
1.A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB” – “RE1”);
2.The affidavit of the applicant made on 4 June 2019 which accompanied the AIC;
3.The affidavit of Jonathan Jun-Sheng Tay, graduate – at – law, made on 9 August 2019 with annexures; and
4.The applicant’s affidavit said to be affirmed on 5 April 2019 but not signed until 17 April 2019 which accompanied the application made pursuant to s.477(2) of the Act, was not read as evidence but treated as submissions.
Background
On 23 May 2019, at a first Court date in this matter, a Registrar of this Court dismissed the application for an extension of time because there had been no appearance by, or on behalf of, the applicant on that date. The applicant now seeks reinstatement of the application to extend time.
The applicant is a citizen of Sudan (item 10 CB 3). He arrived in Australia on 16 June 2013 (CB 118) as an “unauthorised maritime arrival”. He applied for the visa on 13 December 2016 (CB 36–CB 72). The delegate refused the application for the visa on 11 January 2019. The delegate was not satisfied that the applicant was owed protection under s.36(2)(a) or s.36(2)(aa) of the Act (CB 118–CB 130). The matter was referred to the IAA on 17 January 2019 (CB 137–CB 138). The IAA affirmed the delegate’s decision not to grant the applicant the visa.
On arrival in Australia the applicant was interviewed by an officer of the Minister’s department. As found by the delegate, and the IAA, the applicant made no claims to fear harm at that time. The delegate found that he had come to Australia for economic reasons.
The claims to fear harm emerged before the delegate. The applicant claimed to fear harm from the Sudanese government, and militias, because of his membership of the Tuma tribe, his having lived in Israel, his status as a failed asylum seeker, and the disclosure of certain information relating to him which was on the Minister’s Department’s website.
As part of his factual claims as to past harm the applicant said that he had been twice detained by the Sudanese National Intelligence Security Services (NISS). On the first occasion before going to Israel this was for three months, and on the second after he returned, for six months.
The applicant’s migration agent provided submissions to the IAA directed to a number of the delegate’s findings (CB 150–CB 155). The IAA affirmed the delegate’s decision on 19 February 2019.
The Minister’s written submissions provide a fair summary of the IAA’s findings:
“8. On 19 February 2019 the Authority affirmed the delegate’s decision not to grant the applicant a SHEV: CB 160. The Authority found that:
(a)Although it was willing to accept that the applicant’s Tama tribe originated in Darfur, it did not accept that the applicant had discernible links to Darfur or that he had ever travelled there (at [18]);
(b)Based on the applicant’s inconsistent and vague evidence, it did not accept his claim that he fled to Israel in 2010 (at [23]);
(c)Having considered the applicant’s evidence, as well as the information he provided in his entry interview, the Authority considered the applicant had fabricated his claims in his written statement and at his protection interview and was not satisfied that the applicant was ever detained and tortured or otherwise mistreated by Sudanese authorities for any reason in Sudan. It was satisfied that there was no real chance that the applicant will suffer harm for reasons of his imputed or actual political opinion (at [26]-[27]);
(d)Having considered country information in relation to the Tama tribe, the Authority was not satisfied that the applicant would suffer harm for reasons of his tribal group, ethnicity or imputed political opinion for reasons of his tribal group or ethnicity (at [30]);
(e)Country information indicated that there was no risk of persecution for failed asylum seekers who returned to Sudan solely for reasons of having sought protection; but that people who were of interest to the authorities may be thoroughly questioned/arrested on their return (at [36]). However the Authority was satisfied that the applicant would not be a person of interest to the Sudanese authorities on his return and would not face a risk of serious harm due to being a failed asylum seeker or person who was subject to the Department’s data breach (at [37] and [40]);
(f)The Authority concluded that the applicant did not meet the definition of refugee in section 5H of the Migration Act 1958 (Cth) (the Act) (at [43]). In considering the complementary protection criterion, the Authority was not satisfied that the applicant would suffer significant harm based on the cumulative effect of his circumstances and profile (at [48]).”
As set out above the applicant filed his application in this Court on 29 April 2019. When the application was filed the matter was given a first Court date before the Registrar, being 23 May 2019. This date appears on the Notice of Filing and Hearing which subsequently became a part of that application (see also r.2.07A and r.2.07B of the Federal Circuit Court Rules 2001 (Cth) (“the rules”). The proceedings were commenced by a solicitor, Mr Mohammed Algalele of Algalele and Co. Solicitors on behalf of the applicant.
On 23 May 2019 there was no appearance by, or on behalf of, the applicant. The matter was dismissed by the Registrar for non-appearance pursuant to r.13.03C(1)(c) of the rules.
The Issue Before The Court
As set out above the applicant, again represented by the same solicitor (Mr Algalele), has sought reinstatement of the application to extend time.
That is, the consideration now involves the reinstatement pursuant to r.16.05(2)(a) of this Court’s rules of an application made pursuant to s.477(2) of the Act to extend time within which to make a competent application pursuant to s.476 of the Act for judicial review of the IAA’s decision.
The IAA’s decision was made on 19 February 2019. Section 477(1) of the Act provides that an application made pursuant to s.476 of the Act must be made to this Court within 35 days of the date of the making of the IAA’s decision. In the current case the application was made, in writing, 34 days after the expiry of the 35 day period. On this basis, the substantive application pursuant to s.476 of the act was not competent.
Section 477(2) of the Act provides that, upon written application by an applicant, the Court may extend the time for the making of the substantive application, if it considers that it is in the interests of the administration of justice to do so. It is that application which is now the subject of the reinstatement application.
The following is relevant to that consideration. The grounds of the proposed substantive application, prepared by solicitor, Mr Algalele who certified that the grounds had reasonable prospects of success, were in the following terms:
“1. The decision made by the Minister or another person under the Migration Act and the Immigration Assessment Authority failed to consider complementary protection elements when the applicant is sent back to Sudan as the applicant claims that he was detained for three months by the National Intelligence Security Services (NISS) as he was suspected of supporting the opposition. He claims to again be imprisoned for six months. He claims he was tortured during this period. Therefore, he claims that returning to Sudan would ultimately amount to “significant harm” and “serious harm” to the applicant as per the elements contained in the Migration Act. Therefore, it is submitted that the Minister has committed a jurisdictional error and failed to consider complimentary protection provisions.
2. Decisions made by the minister or another person under the Migration Act and the Immigration Assessment Authority failed to consider the applicants claim fairly,
3. Decision made by the minister or another person under the Migration Act and the Immigration Assessment Authority fails to consider the applicants claim fairly,
4. The applicant submits that there is a “question of law” and that there appears to be jurisdictional errors being and not limited to making a decision that is unreasonable in the legal sense, incorrectly interpreting or applying the law as per below paragraphs 2-6 that are reinforced by the affidavit,
5. The applicant submits that he has a well-founded fear of persecution as he fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and that there is a real chance that the applicant would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country,
6. The Applicant submits that as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm as per section 36 (2)(aa) of The Migration Act (1985) (the act),
7. The Applicant submits “I will suffer significant harm if I go back to my country”.”
Although the applicant sought an extension of time pursuant to s.477(2) of the Act the affidavit accompanying this application to extend time made no reference to the reasons for the delay in making the application to the Court. In essence it restated his claims to protection and sought to provide further information in relation to a number of findings made by the IAA.
The grounds supporting the application to extend time are as follows:
“1. The Applicant was seeking legal representation.
2. The Applicant was complying evidence.
3. The Applicant was ill.”
As set out above the application to extend time was dismissed by the Registrar on 23 May 2019. On 11 June 2019 the applicant filed his AIC to reinstate that application.
His supporting affidavit is in the following terms:
“1. The Law firm that was handling this matter had a server breakdown and therefore did not receive the consent orders via their main email [email protected] –
Algalele & Co Solicitors & Co Solicitors <[email protected]> to Bizify
Dear Sirs/Madam,
We note that our email is down and we need it to be back as a matter of urgency.
2. The law firm has received telephone number of the law firm handling the matter however the lawyer was not available to provide the consent orders to another email,
3. I have attended court on my own as I could not afford to pay the legal fees associated with a lawyer attending Court on my behalf,
4. I have accidently gone to the wrong Federal Court address and therefore missed my court case,
5. I consent to the consent orders provided from the respondents legal representative,
6. I wish to have my matter reinstated as if it is not, I will be deported.”
Although no reference is made to r.16.05 in the AIC, I understood that the applicant was seeking reinstatement pursuant to that rule. Relevantly, r.16.05(2)(a) is in the following terms:
“(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a)It was made in the absences of a party”.
The relief sought by the applicant now is discretionary. Such exercise of discretion must be done reasonably, and with some caution, given the competing interests. On the one hand sits the public interest in the finality of litigation. On the other, the interests of the administration of justice. In particular whether, taking into consideration all of the relevant circumstances presented, there is a real dispute to be heard in the substantive application such that the interests of justice require it to be heard (Autodesk Inc v Dyason (No.2) [1993] HCA 6 per Gaudron J at [1] and [18]).
The principles relevant to the current consideration require focus, at least, on the following three factors as explained in MZYEZv Minister for Immigration and Citizenship [2010] FCA 530 per Ryan J at [7]:
1. Whether there is a reasonable explanation for the failure to attend before the Court.
2. The prejudice which may flow to the other party (in this case the Minister) and how this may be alleviated.
3. Whether the application which is the subject of the application to reinstate has reasonable prospects of success.
The Applicant’s Evidence
The applicant’s evidence as to why he, or his solicitor, (who was on the record) did not attend before the Registrar, is in essence as follows.
One, his solicitor’s office had a “breakdown” in its computer server and the solicitor did not receive certain correspondence (proposed consent orders) from the Minister’s solicitor regarding the listing of the matter before the Registrar.
Two, (in seeming contradiction) the applicant attempted to attend Court on his own, as he could not afford to pay his lawyer’s fees to attend on his behalf. In this circumstance he “accidentally” went to the “wrong” Court address, and “missed my court case”.
Relevant background to this is provided by the affidavit of Mr Tay, and what is on the Court’s file.
The application was filed electronically on 29 April 2019. The matter was listed before a Registrar for 23 May 2019. As is required by the Court’s rules the Court’s Registry provided a notice as to the time, date and place for the first Court date (r.2.07B(1)(a)). The date was “23/05/2019, 9:30 AM”. That notice was also inserted, as is required by the Courts rules, as the first page of the application to the Court which had been accepted for filing.
The Rules also require a Registrar to make one copy of the application document (r.2.07B(1)(c) with the notice referred to in r.2.07B(1)(a), and to electronically send that document to the email address stated in the cover sheet of the application to the Court (r.2.07B(1)(e)(i)). On what is before the Court the Notice was sent by the Registry to Mr Algalele on 2 May 2019.
The applicant’s evidence is that his solicitor’s computer server “breakdown” meant that the solicitor did not receive correspondence from the Minister. That correspondence, on the evidence of Mr Tay, was sent on 13 and 21 May 2019. There is no evidence that the server had broken down as at the time of the electronic notification from the Court’s registry on 2 May 2019.
In any event, the evidence of Mr Tay is that on 21 May 2019 (that is two days before the matter was listed before the Registrar) he sent to the applicant’s solicitor, by email, proposed short minutes of order, which if agreed to by the applicant would have resulted in the vacating of the Court event on 23 May 2019, and the setting of a timetable for the progress of the case before the Court (JXT2).
No response was received. On 22 May 2019 Mr Tay then rang the solicitor’s mobile phone number provided in the application and left a voicemail message for the solicitor. This as confirmed by a subsequent email, was to provide the opportunity to the applicant, and his solicitor, to consent to the proposed orders, and that the Minister would mention the matter on their behalf before the Registrar.
No response was received from the solicitor, or the applicant. When the matter was called at 10.55 AM on 23 May 2019 there was no appearance by, or on behalf of, the applicant. The Registrar made the order which is the subject of the current consideration.
It is Mr Tay’s evidence that the applicant’s solicitor subsequently contacted Mr Tay by telephone. He advised that the servers in his office had been down and he had not received the email correspondence. There does not appear to be any explanation as to why after receiving the voice message he waited until after the Court event to return Mr Tay’s call.
However, Mr Tay also gives evidence that the solicitor told him that he, personally, could not attend at the first Court date because the applicant could not afford to pay him. He said he had sent the applicant to attend at Court, but that the applicant could not find the Court “room”. The applicant’s evidence in his affidavit (see [3]-[4] of his affidavit at [20] of this judgment above) confirms that he tried to attend Court on his own. On this evidence both Mr Algalele and the applicant plainly knew of the Court event before the scheduled starting time.
Before the Court
At the commencement of the hearing on 22 August 2019 of the application to reinstate the application to extend time, Mr Algalele who was on the record for the applicant, sought leave to withdraw from the case.
It emerged that Mr Algalele had assisted the applicant in making his application to extend time to the Court, and the AIC to reinstate. The applicant subsequently confirmed that he had paid Mr Algalele for the making of the application to extend time. It was not clear if this included the AIC.
However, the applicant had not paid Mr Algalele for any further representation. Mr Algalele was not prepared to proceed pro bono unless, as he submitted, he was “compelled” by the Court to do so.
I could not be satisfied in the circumstances that it was in the applicant’s best interests to compel Mr Algalele to appear in the face of his clear reluctance to do so. Importantly, having regard to what is set out in the grounds of the proposed substantive application, I could not be satisfied that Mr Algalele had the relevant experience or, it must be said understanding of the concept of jurisdictional error and migration law, to competently represent the applicant, or to assist the Court.
I granted leave for Mr Algalele to withdraw. The Minister’s solicitor raised the issue that if the Minister were ultimately successful he would press for a costs order. Mr Algalele was put on notice that that order, in the circumstances, may be sought against him personally.
The applicant then appeared in person. He was assisted by an interpreter in the Arabic language. The Minister was represented by a solicitor.
It quickly became apparent that Mr Algalele had not explained, or translated, for the applicant the Minister’s written submissions, or the affidavit of Mr Tay which had been filed in these proceedings. Nor did the applicant appear to have any real understanding of his own affidavit of 4 June 2019 filed in these proceedings by Mr Algalele on his behalf.
In relation to this affidavit the applicant submitted that Mr Algalele had discussed the document with him, to some extent in Arabic and, in context, in English, but he could not be sure what was in it. I note that no interpreter’s jurat was completed in relation to this affidavit, even though the applicant’s signature was witnessed by Mr Algalele, his solicitor, who prepared it.
In these circumstances I asked the interpreter to translate each of these three documents for the applicant. I adjourned the hearing of the AIC to enable this to occur.
On resumption almost an hour and a half later the applicant confirmed that the translation had occurred. I adjourned the hearing of the AIC until 27 August 2019 to enable the applicant to consider what had been put against him by the Minister, and to “refresh” his memory of his own evidence.
On resumption the applicant again appeared in person. He was assisted by an interpreter in the Arabic language. The interpreter advised the Court that while she was an interpreter in the Arabic language, the applicant spoke a Sudanese dialect which meant that she may have some difficulty in understanding everything he said. The applicant said he had no difficulty in understanding the interpreter.
The hearing continued on the basis that if either the interpreter or the applicant had any difficulty in understanding each other, they were to notify the Court immediately.
Some little way into the hearing, when the applicant sought to tell the Court about events in Sudan, the interpreter advised that she had some difficulty in understanding the applicant. There was no indication from the applicant of any difficulty on his part up to that point.
I adjourned the hearing. The services of an interpreter in the Arabic language, with specific knowledge of the Sudanese dialect, were subsequently obtained. The hearing continued with no apparent difficulty in this regard.
Consideration
It was clear that the applicant understood that one of the issues for consideration by the Court was whether there was any reasonable, or satisfactory explanation for his, or his solicitors, non-attendance before the Registrar.
In this regard the applicant submitted that when he received the “refusal” from the IAA he went to see Mr Algalele. He asked him for money to act for him. He paid him (an amount of $3700) and Mr Algalele prepared his application and filed it in the Court’s Registry.
The applicant also submitted that he was told by Mr Algalele to attend Court himself. In context it was clear that this was prior to the day of the first Court date before the Registrar.
He submitted that he was told by Mr Algalele to go to the Court at “Goulburn Street”. When he went to that location he was told it was the “wrong address”. This was the address given to him by Mr Algalele. By the time he arrived at Queens Square he was told his matter had been finalised (see further below). I note that none of this was put before the Court in any evidentiary context.
The applicant made a number of other submissions.
One, that since the date of the “refusal” of the visa (about nine months ago) life had been difficult for him and he was suffering.
The decision to reinstate the application to extend time, and indeed the extension of time itself, is discretionary. The impact on the applicant of the refusal to reinstate and/or extend time may be a relevant consideration in both those exercises (see further below).
Two, I specifically drew the applicant’s attention to the need, for both the purposes of the reinstatement, and the extension of time, to find some legal merit in the grounds of his proposed substantive application to the Court.
The applicant responded by restating some of his claims to protection which were before the delegate and the IAA. Specifically, he referred to militias in Sudan, his claimed detention by them, and why he went to Israel, and his return to Sudan.
On the evidence before the Court the IAA considered all of the applicant’s claims to fear harm. It found that the applicant had fabricated these claims. The IAA gave reasons for this conclusion probative of the material before it.
In the circumstances the applicant sought impermissible merits review from the Court. This does not provide a basis to say that there is some reasonably arguable ground arising from the proposed substantive application to the Court, or from the material before the Court, such as to weigh in favour of the reinstatement of the application to extend time, or indeed the extension of time itself.
Three, the applicant submitted that when he first arrived in Australia he was tired after a difficult boat journey. A year later he was interviewed by (in context), the delegate. Both the delegate, and the IAA relied on inconsistencies between what he said in the first interview, and the second interview before the delegate.
I understood the applicant to complain that, relevantly, the IAA should not have relied on these inconsistencies because he was tired on the occasion of the first interview.
On the evidence before the Court the IAA considered the applicant’s evidence at both interviews. Indeed it also considered what he put in writing (with the assistance of a registered migration agent) in his application for the visa (see [14]–[17] at CB 163–CB 164).
In his written statement (the statutory declaration at CB 80) the applicant did not raise the issue of tiredness. Instead the applicant stated:
“During the entry interview conducted on 10 July 2013 with a Department of Immigration and Border Protection officer, I was asked to provide my claims for protection. I did not provide the correct details regarding my reasons for fleeing Sudan as I was afraid of the impact it may have on my application. Further, at that stage I was not informed of and did not understand the relevant requirements for the assessment of my claims by the Department of Immigration.”
The IAA’s relevant analysis of the credibility of the applicant’s claims did not just rely on the inconsistency between the two interviews. Although it was clearly a part of its reasoning, the IAA also found that the applicant’s evidence lacked “plausible explanation” for key claimed events ([18]), such as the failure to “identify any particular ‘trigger event’ or reason for his detention” (by militias) ([19]) and, the lack of political engagement or activity to explain his detention ([19]).
It also found a lack of explanation for other key events (see [22]), “inconsistent and vague evidence” ([23]–[24]) and a failure to provide “clear details” ([25]).
Further, the IAA was clearly mindful of relevant authority and the Full Court’s observation in MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 about the caution required by decision-makers in considering omissions by applicants in what they said at an entry interview ([26] at CB 166).
The IAA found that what the applicant put in his written statement and told the delegate at the interview was a fabrication ([26]). The IAA found that the applicant was “truthful at his entry interview” ([27]).
The IAA’s findings were all reasonably open to it on what was before it. The IAA engaged consciously with the material before it and found, for reasons logically probative of that material, that the applicant told the truth on arrival, and not later. No arguable case is indicated here.
It is important to note that this is not a matter involving an applicant who was unrepresented at the time of making his applications to the Court. There was a solicitor, Mr Algalele on the record. As a solicitor, Mr Algalele had certain ethical responsibilities to his client, and to the Court, during the time that he acted for the client and was on the record in these proceedings.
Even if Mr Algalele did not receive the emails from the Minister’s solicitors, there is no evidence to indicate that he did not receive the telephone message. The fact that he returned Mr Tay’s telephone call provides support for that proposition. In these circumstances, Mr Algalele should have acted with appropriate expedition to respond to Mr Tay’s telephone call.
Mr Algalele has not given any evidence in these proceedings as to relevant events. The applicant’s evidence (the affidavit was witnessed by Mr Algalele and was filed by his firm on the applicant’s behalf) makes no attempt to explain why Mr Algalele, or the applicant, did not proceed on the basis of the notice received from the Court’s Registry at the time of filing the application to extend time. Nor is there any evidence that at the time Mr Algalele did not receive the notice because of any server problem, or for any other reason.
I find that the applicant, through his solicitor, did have reasonable notice of the Court event on 23 May 2019 at least because of the notice sent to his solicitor by the Court’s Registry.
Mr Algalele was the solicitor named on the record for the applicant. Even if the applicant had not paid Mr Algalele for his services, this does not absolve Mr Algalele from his responsibility to notify the Court and the Minister, at an appropriate earlier time, that he would not be attending before the Registrar, and that the applicant would attend in person.
If for no other reason so that the Court could arrange an interpreter in the Arabic language to assist the applicant. The application prepared by Mr Algalele, stated that the applicant would require such an interpreter.
Ultimately, as the Minister submitted, if Mr Algalele had acted appropriately the Minister, as revealed by Mr Tay’s evidence, would have agreed to orders by consent, which would have incurred minimal costs.
I do not accept that the applicant has provided a satisfactory or reasonable explanation for his solicitor’s non-attendance before the Registrar.
The applicant, who was legally represented by Mr Algalele, knew of the Court event and both had reasonable notice of it. It was for the applicant, and certainly for Mr Algalele to make sure that the applicant knew where the Court was located and how to get there. Further, if Mr Algalele who acted for the applicant at the time, had acted appropriately the need for attendance would have been unnecessary.
Nor do I accept that he has provided a reasonable explanation for his own failure to attend. The applicant and Mr Algalele would have been on notice from the Court’s Registry as to the first Court date as from 2 May 2019.
The applicant’s solicitor should have taken appropriate steps to brief him on where to go to attend Court. The Law Courts building at Queens Square cannot be said to be some obscure suburban address.
If his solicitor could not assist him then the applicant himself had a number of weeks to acquaint himself as to where to go. While the applicant does require the services of an interpreter for any appearance in Court, it is reasonable to accept that someone who has been in Australia for six years can follow simple directions in English as to the location of the Court building.
This is particularly so in circumstances where the applicant has now provided two affidavits to this Court (5 April 2019 – see [2] above, and 4 June 2019) both in English, both witnessed by his solicitor, and neither has had an interpreter’s jurat completed as having been made with the assistance of an interpreter.
The orders of the Registrar were made on 23 May 2019. On the evidence of Mr Tay, Mr Algalele would have known of this by at least the afternoon of that date. Yet there is no explanation whatsoever by the applicant, or Mr Algalele, as to the delay until 11 June 2019 in making the application for reinstatement.
In all, the applicant has not provided a reasonable or satisfactory explanation for the non-attendance, or the delay in making the application to reinstate. This weighs against the granting of the relief sought in the AIC.
As the Minister submits he would not suffer prejudice if the reinstatement were to be granted. However, this alone is not of itself sufficient to justify the exercise of the discretion in the applicants favour. (AZAFNv Minister for Immigration and Border Protection (No 2) [2016] FCA 305 at [25]).
The purpose of the AIC is, as set out above, to reinstate the application to extend time. Relevant to the current consideration is the question that immediately arises as to whether it is in the interests of the administration of justice to extend time, or more precisely given the circumstances, whether there is any reasonable prospect that the Court would, in the exercise of its discretion, be minded to extend time.
The factors to be considered in relation to the question of the extension of time are not exhaustive. However, there are a large number of authorities which provide guidance to this Court, as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77, MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 and SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [18]–[23].
In the current case, the factors arising from the circumstances presented in considering the exercise of the discretion appear to be the length of the delay, whether any satisfactory explanation or reasonable excuse has been given for the delay, whether the Minister would suffer any prejudice if time were extended, the impact on the applicant if time were not extended, and primarily whether the proposed substantive application for judicial review is sufficiently, or reasonably arguable, or has reasonable prospects of success, or has such merit to justify the extension of time to allow the matter to proceed to a final hearing in the interests of the administration of justice.
The applicant’s grounds for extension of time were outlined as follows in his originating application:
“1. The Applicant was seeking legal representation.
2. The Applicant was complying evidence.
3. The Applicant was ill.”
The delay in lodging the proposed substantive application is 34 days after the expiry of the 35 day period set out in s.477(1) of the Act.
The applicant has not provided any evidence as to his claimed illness, nor importantly how this prevented him from complying with the requirement in s.477(1). Nor is there anything to explain the difficulty in finding a lawyer. I note in this regard that before the IAA the applicant was represented by a registered migration agent who was also a lawyer (CB 155).
Even if the words “complying evidence” as set out in the grounds of the application to extend time were to be understood as “compiling evidence”, the applicant did not provide any other evidence with his application. His accompanying affidavit merely attached the IAA’s decision record.
As set out above the Minister does not claim prejudice if time were to be extended.
Plainly if time were not extended, the consequence for the applicant would be that he would be returned to Sudan. The applicant has had two opportunities (with representation) to satisfy the relevant Australian authorities that he is owed protection in Australia. If there is no apparent legal error apparent in the grounds of the proposed substantive application then it is not for the Court to consider, or criticise, the merits of the IAA’s decision and, in effect, engage in impermissible merits review.
In any event what weighs most heavily against the reinstatement is that in the context of any consideration of the application to extend time, the grounds of the proposed substantive application are so lacking in merit that it is not in the interests of the administration of justice to extend time, and thereby provides no reasonable arguable basis on which to reinstate this application.
It must be said that it is difficult to accept that the grounds of the proposed substantive application were drafted by a solicitor with any relevant knowledge or expertise.
Ground one, in essence, asserts that the IAA failed to consider the complementary protection criterion in relation to the applicant’s claims to have been detained and tortured.
On any plain reading of the IAA’s decision the IAA considered and rejected these claims (see [47] and when read with [15]–[16] and [26], and with reference to SZSHKv Minister for Immigration and Border Protection [2013] FCAFC 125 at [32]–[35]). In fact the IAA found that the applicant fabricated his factual claims concerning fear from the Sudanese authorities, including the claims of detention and torture.
In the circumstances the applicant’s proposed ground is no more than a disagreement with the IAA’s findings. The IAA clearly considered these claims, it simply did not accept that they were true. The IAA gave reasons for this which were reasonably open to it and probative of the material before it. The ground therefore seeks impermissible merits review and does not raise any legally arguable case.
Proposed grounds two and three are in identical terms. At best it may be an attempt to argue some breach of procedural fairness. Both grounds are absent any particulars.
As the Minister submits, by the operation of s.473DA, Division 3 of Part 7AA of the Act (with s.473GA and s.473GB) is taken to be the exhaustive statement of the natural justice hearing rule.
The IAA’s decision record reveals that the IAA gave fair consideration to the applicant’s claims and evidence. Importantly, there is nothing to indicate that it did not comply with the requirements of the Act.
I note that in his affidavit which accompanied the application to the Court, the applicant repeats many of the factual claims he made in relation to the application for the visa. He then seeks to take issue with a number of findings of fact made by the IAA, including about his claimed detention.
It is clear from this, as with proposed ground 1, what the applicant means by the IAA not considering his claims fairly, is that it did not accept his claims. Again this seeks merits review. No requisite merit is indicated here.
It must be said that proposed ground 4, in the circumstances, is meaningless jargon. If the ground seeks to assert that (with reference to [2]-[6] of what are said to be the applicant’s “Responses to the Decision made by the Immigration Assessment Authority”) the IAA’s decision was unreasonable, then no jurisdictional error is indicated in this regard.
At [2]–[6] of this part of his affidavit the applicant restates his explanations as to why he went to Darfur, then Israel and why he returned to Sudan, all of which was before the IAA.
There is no indication from the IAA’s relevant analysis at [18]–[24] (CB 164–CB 165) that its analysis was unreasonable in the requisite sense. The IAA plainly and consciously engaged, with the necessary intellectual focus, with the claims, and the applicant’s various explanations. Its finding were all reasonably open to it. In all proposed ground 4 seeks impermissible merits review.
Grounds 5, 6 and 7 simply restate the test for the grant of protection visas and assert that the applicant would suffer significant harm if he returns to his country. Again even at best this can only be seen as some poor attempt at seeking merits review.
Conclusion
In all, there is no satisfactory explanation for the delay in making the proposed substantive application to the Court. The grounds of that application are devoid of any legal merit such as to argue for the extension of time.
The absence of any reasonable prospect of time being extended pursuant to s.477(2) of the Act, argues strongly, and with great weight, against the application to restore the application to extend time. An application which itself lacks any reasonable explanation of the failure to attend before the Registrar.
In the circumstances it is appropriate to refuse the application to reinstate. I will make an order dismissing the AIC.
Costs
As set out above the Minister has been successful in his response to the applicant’s AIC. The Minister also seeks an order for his costs in a fixed amount.
It is appropriate given what is variously set out above to consider whether any costs order pursuant to s.486F of the Act should be made against Mr Algalele, the applicant’s former solicitor, and not against the applicant personally. In particular I note the following.
One, the application to extend time which commenced the current proceedings was prepared by Mr Algalele, who filed it on the applicant’s behalf.
As set out above such an application requires the applicant to provide a satisfactory explanation for the delay in making the proposed substantive application, and to provide grounds with some legally arguable point. It does not do so.
With legal representation the applicant provided an affidavit in support of the application to extend time. In that affidavit the applicant made no attempt whatsoever to explain the delay. As the solicitor acting for the applicant, and who “prepared” the affidavit, Mr Algalele should have known that such an omission was a serious evidentiary deficiency in the application.
Two, the grounds of the proposed substantive application which were the subject of the application to extend time, are, as set out above, lacking in legal merit. In fact they are seriously unmeritorious.
Three, the application to extend time, was the subject of the certification by Mr Algalele a lawyer, pursuant to s.486I of the Act, that there were reasonable grounds for believing that the migration litigation had a reasonable prospect of success.
In this regard I note that for the purposes of s.486E of the Act the migration litigation does not need to be hopeless or bound to fail before it can be said to have no reasonable prospects of success. As set out above that application lacks requisite merit.
Four, at the time of the first Court date Mr Algalele was the solicitor on the record. A solicitor acting competently would have responded to the Minister’s offer that orders for the conduct of the matter be agreed, in which case there was a probability that the first Court date would have been vacated at minimal cost to both parties. I note that in matters of this type before the Court where an applicant is legally represented, unless there is some specific difficulty arising from an individual matter, the usual practice is for this to occur. In the alternative, and as offered by Mr Tay, the Minister would have mentioned the matter on the applicant’s behalf. This would have avoided the dismissal for non-attendance.
Five, in submissions before the Court the applicant submitted that Mr Algalele gave him the wrong address for the Court event. This was not put before the Court in any evidentiary context. Nonetheless, given that the applicant was by that time unrepresented it is appropriate to, at least, explore with Mr Algalele whether that was the case.
Six, the AIC was supported by the applicant’s affidavit of 4 June 2019. This was also prepared by Mr Algalele. The affidavit is deficient in a number of ways. Of relevance however, is that the affidavit purports, with no explanation, to contain a “cut and paste” reference to advice said to have been given to the applicant, in context, by Mr Algalele.
Seven, both the applicant’s affidavits of 5 April 2019 (see 2.4 above) and 4 June 2019 were said to have been made by the applicant. Importantly, although as was plainly demonstrated at the hearing before the Court the applicant’s English was limited, there is no interpreter’s jurat. These affidavits were both prepared by Mr Algalele.
Eight, although Mr Algalele knew by at least 20 August 2019 (when he communicated with the Court’s Registry) that he would not continue to act for the applicant, there was apparently no attempt to provide the applicant with a notice of withdrawal as required by r.9.03 of this Court’s Rules.
It is appropriate given s.486G of the Act, and on the basis of procedural fairness generally, that Mr Algalele be given the opportunity to address the Court on the question of whether a costs order should be considered against him personally. I will make an order that he be given notice of this judgment, and provide a reasonable period for him to consider his position. The matter of costs is set down for hearing at 9:30am on Friday, 13 September 2019.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 6 September 2019
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