Bza19 v Minister for Immigration
[2019] FCCA 2361
•23 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZA19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2361 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – judicial review application filed fifteen years late – refusal of an extension of time. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: BDA16 & Ors v Minister for Immigration [2018] FCCA 2370 |
| Applicant: | BZA19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1204 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr C O'Sullivan of Australian Government Solicitor |
INTERLOCUTORY ORDERS
The name of the applicant is not to appear on the transcript of today’s proceedings.
The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1204 of 2019
| BZA19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant seeks judicial review of a decision of the Refugee Review Tribunal (Tribunal), as it was then known, made on 18 June 2004. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The judicial review application was lodged on 15 May 2019, some 15 years after the Tribunal decision. Obviously this is outside the period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant, undaunted, seeks an extension of time under s.477(2) of the Migration Act.
The background facts relating to this matter are set out in the Minister’s outline of submissions, filed on 19 August 2019.
In seeking protection, the applicant claimed that he was born on 19 February 1980 in Malaysia.[1] He first arrived in Australia on 22 January 2004,[2] and lodged the protection visa application on 3 March 2004.[3] The delegate refused to grant the protection visa on 4 March 2004.[4]
[1] Bundle of relevant documents (RD) 28.
[2] RD 13, 38.
[3] RD 1 to 31.
[4] RD 32 to 43.
On 6 April 2004, the applicant applied to the Tribunal for merits review.[5] He listed his mailing address as and address in Kingsgrove NSW, and did not appoint a representative.[6] On 22 April 2004, the Tribunal wrote to the applicant to inform him that it had considered his application but was unable to make a decision in his favour on that information alone, and invited him to attend a hearing on 15 June 2004.[7] The applicant did not respond to the hearing invitation, was unable to be contacted at the telephone number he provided, did not attend the hearing, and provided no explanation for his non-attendance.[8]
[5] RD 44 to 47.
[6] RD 44 to 47.
[7] RD 50 to 51.
[8] RD 52, 61.
The Tribunal made a decision on the papers and affirmed the delegate’s decision on 18 June 2004.[9] On 21 June 2004, the applicant was invited to attend a handing down of the decision, scheduled for 8 July 2004.[10] The Tribunal sent him a copy of the decision record on the same day.[11] The applicant lodged the present application for judicial review in respect of the Tribunal’s decision on 15 May 2019.
[9] RD 58 to 69.
[10]RD 53 to 54.
[11]RD 55 to 57.
Protection claims
In summary, the applicant claimed he faced discrimination in Malaysia for being ethnically Chinese, for not being Muslim, for being homosexual, and for supporting the gaoled former Malaysian Prime Minister.
Tribunal decision
The Tribunal summarised the applicable law,[12] the applicant’s claims and evidence, and relevant country information.[13]
[12] RD 59 to 61.
[13] RD 61 to 67.
The Tribunal found the applicant’s claims were “vague and lack detail”.[14] The Tribunal noted that it had invited the applicant to attend a hearing because it had considered his application and was not able to make a favourable decision on that information alone[15] and that it wished to have raised various questions with the applicant about his claims.[16] The Tribunal accepted that independent evidence indicates policies implemented by the Malaysian government gave preferential treatment to the Malay majority, but that this evidence did not support a conclusion that the Chinese minority is subjected to mistreatment amounting to persecution.[17]
[14] RD 68.
[15] RD 61, 69.
[16] RD 68 to 69.
[17] RD 68.
The Tribunal concluded that the applicant did not satisfy the criterion set out in s.36(2) of the Migration Act 1958 (Cth) (Migration Act) for the protection visa.[18]
[18] RD 69.
The present proceedings
The applicant continues to rely upon his show cause application as filed. The grounds in support of an extension of time are:
1. The applicant did not receive a copy of the Tribunal decision notification and decision.
2. The applicant did not know his application was reviewable in the FCC.
The grounds of the proposed substantive application are:
1. The Tribunal failed to afford procedural fairness.
2. The Tribunal failed to serve the notice of attending a hearing.
3. The Tribunal failed to provide an opportunity for the applicant to make an oral submission.
4. The Tribunal failed to serve its decision notification and decision record.
The application is supported by an affidavit filed with it. In that affidavit, the applicant identifies himself using alternative names. The applicant tells me that the first name, which is what he used in his protection visa application, is false and that his true name is the second name given in that affidavit.
The applicant in that affidavit also refers to his family in Australia, including a daughter who will become an Australian citizen next month. I received that affidavit. I also have before me as evidence the book of relevant documents filed on 2 July 2019 and the affidavit of Cameron O’Sullivan made on 8 August 2019. That affidavit goes to the prejudice that the Minister would suffer in the event that an extension of time were granted.
I accept the general principles concerning the manner in which the Court deals with applications of this nature.
Subsection 477(1) of the Migration Act requires an application to the Court to be made within 35 days of the date of the Tribunal decision. Subsection 477(2) of the Migration Act confers a discretionary power on the Court to extend the 35-day period identified in s.477(1) of the Migration Act if an application for an extension of time has been made in writing and the Court “is satisfied that it is necessary in the interests of the administration of justice to make the order”.
That the Court is satisfied that it is necessary in the interests of the administration of justice to grant an extension of time is a precondition to the exercise of the power and its importance cannot be overstated.[19] The statutory intention of s.477 of the Migration Act must be viewed in the context of the “finality of litigation”.[20]
[19] EXU17 v Minister for Immigration [2018] FCA 1675 at [29], [32]-[33], [44], [48] per Griffiths J.
[20] BDA16 & Ors v Minister for Immigration [2018] FCCA 2370 at [12].
The principles relevant to the Court’s discretion to grant an extension of time within which to appeal are well-established and have been summarised in the decision of CEV15 v Minister for Immigration[21] at [9], as follows:
(1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.
(2) The length of the delay is a relevant factor.
(3) The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time.
(4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.
(5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account.
[21] [2017] FCA 976
The Minister contends that the application for an extension of time should be refused because that the delay is unwarrantable and not adequately explained, the proposed substantive application is unmeritorious, and there would be prejudice to the Minister if the application were allowed.
As the Minister notes in his submissions, the show cause application is approximately 15 years out of time. That is an inordinate delay. That itself is an adequate reason to refuse the extension of time request. Prior to the hearing today, the applicant had not given a persuasive explanation for his delay. As the Minister notes, not only is the delay unwarrantable, but, at least in written documents, it was not adequately explained. Further, as the Minister notes, ignorance of the time limit for judicial review is not a satisfactory explanation for delay.
In oral submissions, and somewhat surprisingly, the applicant sought to explain more persuasively the extraordinary delay in this matter. That explanation is that he came to Australia from China using a false Malaysian identity. His claims for protection were entirely false, including his name and the country of reference. The applicant now says that he fears harm in China from a childhood associate who he reported to the authorities for involvement in a gang rape in China. Both the applicant and this person lived in Fuzhou in Fujian Province. His friend served a sentence of seven years and upon release came looking for the applicant. He stole his money and threatened the applicant with harm. Now the applicant has a child, he seeks to remain in Australia in order to find protection from the man he believes will still look for him with the intention of harming him.
Given that these claims are entirely new, they could not have been considered by either the Minister’s Department or the Tribunal. Even if some technical defect could be found in the Tribunal’s process, I would have been inclined to withhold relief in the exercise of discretion, given that the applicant’s claims before the Tribunal are now admitted to be entirely false.
As I put to the applicant, the appropriate course in the present circumstances is not to seek to find a reason to remit the matter to the Tribunal but for the applicant to tell his true story to the Minister’s department, with a view to the Minister considering whether to exercise his discretion to permit a fresh protection visa application under s.48B of the Migration Act.
In my view, the interests of the administration of justice do not call for an extension of time in this matter for several reasons. First, the delay in coming to court is inordinate. The applicant conceded that for almost all of that 15 year period he has been living in the community without a valid visa. Secondly, the applicant’s explanation for the delay in his application was unpersuasive and his explanation today only points to a different procedural route. Thirdly, the grounds of review proposed are, in my view, weak and, even if established, the Court would be inclined to withhold relief.
With these considerations in mind, I will order that the application for an extension of time be refused. It follows that the proposed judicial review application is incompetent.
In consequence of the refusal of the extension of time, the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 27 August 2019
0
3
3