CEE15 v Minister for Immigration
[2017] FCCA 3363
•14 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEE15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3363 |
| Catchwords: MIGRATION – Extension of time application – no proper explanation for failure to lodge application within time – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.441A, 441C, 477 |
| SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 |
| Applicant: | CEE15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| First Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2357 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 14 November 2017 |
| Date of Last Submission: | 14 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 14 November 2017 |
REPRESENTATION
| The Applicant appearing in person |
| Solicitors for the Respondent: | Mr Young, Sparke Helmore |
ORDERS
Order 1 of the order of 13 November 2017 be set aside.
The Applicant be granted leave to proceed with the application filed on 21 October 2015 out of time.
The application filed on 21 October 2015 be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2357 of 2015
| CEE15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore)
This matter concerns an application which was filed by the applicant on 21 October 2015. The application includes an application for an extension of time to file an application for judicial review of the decision of the Refugee Review Tribunal (‘RRT’). The Tribunal’s decision was provided on 6 March 2015 and the application was filed on 21 October 2015, 193 days out of time. Pursuant to section 477(2) of the Migration Act 1958 (Cth), the Court may order that the 35 day period prescribed under section 477(1) of the Act be extended if the Court considers it appropriate if:
a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
b)the Court is satisfied that it is necessary in the interests of justice to make the order.
The grounds of the application set out in that document are:
a)The applicant had been completely unaware of the Tribunal decision until recently.
b)The applicant’s previous registered migration agent did not provide a copy of the Tribunal decision to the applicant.
c)The applicant never received it. The agent never called and explained the decision to the applicant. The applicant is an asylum seeker from Sri Lanka and has limited knowledge of the English language, let alone legal processes and deadlines in the judicial review process and the timelines that he must comply with.
d)The applicant had not been aware of the fact that on or before 35 days from the date of the Tribunal decision, a judicial review application is required to be lodged at the Federal Circuit Court of Australia until recently.
e)Accordingly, the applicant did not have the opportunity to file a judicial review application at the Federal Circuit Court of Australia within 35 days from the Tribunal decision.
f)The applicant was never explained these vital facts by his previous representative and/or explained the decision which has been unfavourable to the applicant.
g)The first time the applicant called up and requested and received the Tribunal decision was by email on 13 October 2015 from the Tribunal in Perth, Western Australia.
h)The above delays on the part of the applicant have not been prejudicial to any other party, being the Immigration Minister and the Administrative Appeals Tribunal.
The applicant also stated from the bar table that he was not aware of the details of the decision, or of what he should do and he did not have proper instructions from anybody. In my view, these explanations do not provide a proper basis for extending time on the basis that it is necessary in the administration of justice to make the order.
In relation to the requirements for the grant of an extension of time under section 477(2), a list of factors that the Court has regard to in determining whether an extension of time is in the interests of the administration of justice include:
a)the extent of the delay;
b)the reasons for it;
c)the merits of the proposed substantive application;
d)any prejudice to the respondent;
e)the impact on the applicant if time is not extended;
f)the public interest; and
g)consideration of fairness as between the applicant and other persons otherwise in a similar position.
The applicant is in the same position as many others who are subject to decisions of the Tribunal. The applicant has not sworn an affidavit setting out any proper explanation for his failure to lodge the application within time. On the basis of the material in the court book, the Tribunal properly notified the applicant’s registered migration agent of its decision via email in accordance with section 441A(5) and 441C(5) of the Act and the applicant has provided no sworn evidence to the effect that he was not provided with a copy of the Tribunal’s record from his registered migration agent.
Further, ignorance of time limits for filing an application for judicial review without further justification is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38].
In terms of the merits of the substantive application, having reviewed the decision of the Tribunal and having regard to the stated of grounds application, in my view, no jurisdictional error is disclosed in the manner in which the Tribunal approached its task.
The grounds of the application set out in paragraph [4] of the application are as follows:
a)The RRT erred in not giving consideration to the evidence relating to the applicant’s individual circumstances.
b)The RRT erred in not giving consideration to the evidence provided that the applicant will suffer significant harm by Sri Lankan authorities upon his return to Sri Lanka.
c)The RRT did not consider the evidence provided by the applicant that due to his political involvements in Sri Lanka he had been abused and threatened by the offenders.
d)The evidence provided by the applicant has not been considered by the RRT and accordingly, the RRT erred as a matter of law.
The decision of the Tribunal refers to the grounds of protection claims advanced by the applicant in paragraphs [3] to [20] of the decision. The Tribunal considered the evidence given to the Tribunal by the applicant with the assistance of an interpreter. The Tribunal also noted that the applicant was represented in relation to the review by a registered migration agent. In my view, the applicant has not raised an arguable case that the Tribunal failed to consider his individual circumstances, the claims that he made before the Tribunal or the written submissions filed by his representatives in relation to conditions in Sri Lanka and in particular, conditions as they pertain to failed asylum seekers.[1]
[1] Tribunal decision [90], [95]-[100].
The Tribunal considered the treatment that may be afforded to the applicant upon his return to Sri Lanka and noted at paragraphs [100] – [101] that the applicant may suffer discomfort. The Tribunal accepted that prison conditions in Sri Lanka were poor and overcrowded and the applicant may suffer discomfort whilst in prison during a short period of remand, but did not accept that any harm suffered by the applicant would be intentionally inflicted upon the applicant.
In that regard, the Tribunal correctly applied the law as it then was and as it has been affirmed by the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34. In my view, no arguable case has been outlined such as would persuade me that there is an arguable case for the relief sought by the applicant. In those circumstances, I dismiss the application for an extension of time.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 12 February 2018
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