BZAGS v Minister for Immigration

[2016] FCCA 120

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAGS & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 120

Catchwords:
MIGRATION – Application to set aside dismissal order pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules2001.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.05(2)(a)

First Applicant: BZAGS

Second Applicant: BZAGT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 268 of 2014

Judgment of: Judge Jarrett

Hearing date: 13 January 2016

Date of Last Submission: 13 January 2016

Delivered at: Brisbane

Delivered on: 13 January 2016

REPRESENTATION

The First Applicant appeared in person

No appearance by the Second Applicant

Solicitor for the First Respondent: Ms Kelly

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The name of the second respondent be substituted with the name “Administrative Appeals Tribunal (formerly known as the Refugee Review tribunal)”.

2. The Application in a Case filed on 24 December 2015 be dismissed.

3. The applicant is to pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,146.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 268 of 2014

BZAGS

First Applicant

BZAGT

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This is an application filed on 24 December, 2015 which, in effect, seeks that orders that I made on 4 March, 2015 dismissing the applicant’s primary application, to which I will come shortly, be set aside and his primary application, in effect, be reinstated.

2. His primary application was an application to extend time within which to commence a judicial review application in respect of a decision of a refugee review tribunal, which itself affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a protection visa. 

3. The primary proceedings have two applicants, the applicant presently before me and another applicant, who was, I think, the present applicant’s wife.  From what I understand, she does not participate in this application, and she has not sought to press her claim to a protection visa.  She was applying for that visa as part of the first applicant’s family unit. 

4. The applicant has filed an affidavit, which sets out his evidence about why it was that he did not appear before me when the matter came on for hearing in March last year. 

5. He says in that affidavit filed on 24 December that he is currently in a detention centre.  He has been seeking a protection visa since 2011.   His country of origin is Nepal. 

6. He says that he missed the hearing date on 4 March last year because he was unwell.  In his affidavit he claims to have had “mental sickness”.  There is, as the solicitor for the first respondent points out, no evidence before me about the nature or extent of the illness from which the applicant says he was suffering at that time. 

7. The affidavit filed by the applicant reveals that it was not long after the dismissal of his proceedings that he was contacted by the Immigration Department, and he was eventually taken into detention.  That occurred, it seems, in about the middle of last year, towards the end of July.  This application was filed on 24 December, and so there is a considerable delay between when the primary application was dismissed and the filing of the application to reinstate.  The delay is considerable, and it is, in my view, unexplained, having regard to the affidavit of the applicant. 

8. His failure to appear on the last Court date is not explained in the evidence either.  The assertion by him that he missed his hearing date “due to my mental sickness” is an assertion only.  There is no evidence to support that assertion.  There is no explanation as to why he missed the date, nor is there any explanation as to why it took him so long to commence this application. 

9. An explanation for his failure to appear on the last occasion is all the more significant, given that his primary application was filed on his behalf by a lawyer. There is no explanation as to what became of the applicant’s legal representatives and why those representatives did not continue to be retained in the proceedings. An explanation for his failure to appear at the hearing and an explanation for the delay in commencing this application are both relevant matters to be considered when determining whether the order of 4 March, 2015 should be set aside.

10. Another consideration is the prejudice to the respondent if the application succeeds.  Quite properly, in this case the first respondent concedes that there is no prejudice which would flow to him if the application is allowed. 

11. What seemingly attracts the most attention in the authorities that deal with reinstatement of applications such as this is the merit that might attend the underlying application which is sought to be reinstated.  It is important to understand that this is not the occasion for the determination of that application, but some assessment of its merit needs to be undertaken, because the extent of the merit in the underlying application will have a bearing upon the Court’s exercise of discretion. 

12. Here the underlying application is an application to extend time within which to commence a judicial review application.  That of itself is an application for discretionary relief which requires the Court to consider a number of matters which look very much like the factors that need to be considered on this application:  whether there is an explanation for the failure to meet the time limit prescribed by the Rules or the Act for the commencement of the review application; whether there is any prejudice to the respondent if the extension of time is allowed and the merit of the underlying application. 

13. There was set out in the application to extend time filed on 25 March, 2014 an explanation as to why the applicant did not commence his proceedings within time. They are to be found under the heading Grounds of Application for Extension of Time. Under that heading, he says that there are jurisdictional errors in the decision of the Refugee Review Tribunal which “are in the interests of the administration of justice to extend time, so that they can be reviewed by the Honourable Court”.

14. He also says that he was unable to afford to obtain legal (presumably) representation or advice until approximately two weeks prior to the lodging of the application, which was just outside the limitation period of 35 days.  The applicant says that upon obtaining sufficient funds he sought immediate legal advice and the making of the application was progressed in a timely manner.  He says that he has limited access to funds, as he is unable to work in Australia and only receives limited support from his family overseas.  He says that any application that had been made in time would have denied “the applicant’s legal representation”. 

15. There are a number of observations that should be made about those grounds.  The first is that none of them are sworn to.  They are but assertions contained within the application itself.  But, for the purposes of this application, I assume that they are all true.  Secondly, the fact that the applicant was unable to afford legal representation is no answer to his failure to file his application within time. 

16. Whilst it is always desirable to file an application which fully and properly particularises the grounds of review, experience demonstrates that that is rarely the case.  Because of the imposition of a time limit, one which is relatively short, it is often the case, indeed, I would venture to say more often than not it is the case, that an application is filed by an applicant without the benefit of legal advice, which is subsequently amended so as to provide proper grounds of review.  A great number of applicants in this jurisdiction file their applications by themselves.  It is, in my view, simply no proper explanation to say that there was no legal representation which permitted the applicant to file his application within time. 

17. The balance of the reasons set out in the application deal with the availability of funding to get legal advice.  I need say nothing further about those matters. 

18. Finally, the applicant’s assertion that his application – that any application that he had made in time would have denied “the Applicants legal representation”, is simply not correct. 

19. The applicant could have filed his application within time himself and then engaged lawyers when his funding permitted him to do so, and those lawyers would then have been able to represent the applicant.  There would have been nothing preventing them from doing so. 

20. So insofar as the prospects of the underlying application for the extension of time are concerned, there is no satisfactory explanation for the applicant not filing his application within the time limited by the Rules. 

21. Again, there is no suggestion of prejudice from the first respondent if that application to extend time succeeded. 

22. It is necessary to consider the merit of the underlying application which the applicant seeks to agitate if he was given an extension of time within which to commence a judicial review application.  The material contained within the Court book demonstrates that the applicant is a citizen of Nepal.  He arrived in Australia on 1 August, 2008.  The second applicant in the underlying principal application entered Australia on a student visa, and the present applicant was granted a visa to enter as her dependant. 

23. The first applicant made a claim for a protection visa on 23 February, 2011.  The second applicant made a claim based on membership of the first applicant’s family unit.  There was an interview, as is usually the case, with a representative of the first respondent’s department.  On 25 August, 2011 a delegate of the first respondent notified the applicant that his application for a protection visa had been refused.

24. The applicant sought for that decision to be reviewed by a refugee review tribunal. A tribunal affirmed the decision of the first respondent’s delegate on 23 March, 2012 but, on 13 June, 2013 the Federal Circuit Court ordered that the tribunal’s decision be quashed and the matter remitted to a tribunal to be determined according to law. The reasons for that are not particularly important.

25. A tribunal reheard and re-determined the applicant’s review application.  There was another hearing. The applicant provided material to the tribunal in support of his application.  On 31 January 2014, the tribunal decided to affirm the decision of the delegate of the first respondent not to grant the protection visa for which the applicant had applied. 

26. On 25 March, 2014 the applicant filed his application for an extension of time within which to commence his judicial review proceedings in respect of the second tribunal’s decision in this Court.

27. The application that was filed has one proposed ground of review particularised in four ways.  It is:

    That the Refugee Review Tribunal fell into jurisdictional error in that either and/or alternatively it:

    (a)did not observe its duty to review the decision before it; 

    (b)displayed actual or ostensible bias in the making of the decision; 

    (c)did not properly consider the documentary evidence submitted by the applicants;  and

    (d) the Tribunal’s failure to consider evidence available to it was a failure to give genuine and real consideration to the material before it and a number of other steps taken in its reasoning process amounted to illogicality.

28. As to those four grounds of review, having read the tribunal’s reasons for decision, a copy of them will be found, amongst other places, as an annexure to the affidavit of Zeke David Bentley, filed on 25 March 2014, it is clear that the tribunal conducted a review of the decision that was under review.  The tribunal invited the applicant to attend a hearing and he did so.  The applicant was able to place before the tribunal submissions and documents.

29. The tribunal’s reasons demonstrate that it engaged in the review process itself rather than simply relying upon the decisions that had been made by the delegate in the first instance or, indeed, on the decisions that had been made by the first tribunal.  In my view, there is no prospect of the applicant establishing that the tribunal did not observe its duty to review the decision before it.

30. To make out an allegation of actual bias is a difficult thing to do.  Generally more is needed than what appears from the tribunal’s reasons for decision.  There generally needs to be some proper evidence of actual bias.  There is, in this particular case, no evidence of actual bias.  Nor is there, in my view, anything that comes from the tribunal’s reason for decision which would indicate any apprehended bias on the part of the tribunal.

31. The tribunal’s obligation is to conduct a review.  Part of the review process requires an investigation into the claims that are being made.  The process is inquisitorial.  To the extent that the tribunal engaged in a process of questioning of the applicant and to the extent that the applicant may have found that uncomfortable or disconcerting, the tribunal did not demonstrate apprehended bias.  What it demonstrated was an engagement with the task that it had to carry out.  In my view, this ground of review has no prospect of success.

32. The tribunal’s reasons are detailed.  They carefully explore the evidence that the applicant had provided to the tribunal; that the tribunal took a different view of some of that evidence to the view that the applicant wished the tribunal to have of it, does not mean that the tribunal has fallen into error or has not properly considered the documentary evidence that was before it.

33. There is, frankly, nothing in the tribunal’s reasons for decision which would suggest that the tribunal did not properly consider any of the evidence that had been placed before it by the applicant.  The tribunal’s reasons reveal a careful analysis of that evidence. 

34. The applicant confirmed, when I asked him in the course of these proceedings, that really his complaint is that he does not agree with the Tribunal’s decision or the Tribunal’s view of the evidence that he placed before it.

35. As I have already indicated, in my view, the Tribunal has engaged with the task that it had to perform.  It has given genuine and real consideration to the evidence and other material before it.  In my view, grounds 3 and 4, expressed as paragraphs (1)(c) and (d) in the application filed on 25 March 2014,  have no prospects of success. 

36. Having concluded that there is no explanation for the delay in commencing the primary review application and that there is no prospects of success on that application, I conclude that there is no prospect of the application to extend time, filed on 25 March, 2014 being successful; that is to say it has no merit.

37. That finding, coupled with the applicant’s failure to explain his non-appearance on 4 March, 2015 and his failure to explain the delay between that date and the commencement of this application, means that the application filed on 24 December 2015, must be dismissed. I order, accordingly.

    [RECORDED: NOT TRANSCRIBED]

38. In these applications, costs ordinarily follow the event.  Sometimes, however, when there are special circumstances, the Court does not apply that usual rule.  Impecuniosity does not usually constitute special circumstances such as to demonstrate that the usual rule as to costs should not apply.  In my view, there are no special circumstances in this case.  

39. Costs ought to follow the event and I make an order in accordance with the first respondent’s outline of submissions.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate:

Date:  22 January 2016