CHF19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 970
•1 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CHF19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 970
File number: MLG 1811 of 2019 Judgment of: JUDGE LADHAMS Date of judgment: 1 November 2023 Catchwords: MIGRATION – application for an extension of time to seek judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant a protection visa – where delay in filing application is over 6 years – whether there is an adequate explanation for the delay – whether there are reasonable prospects in relation to judicial review application – not in the interests of the administration of justice to grant extension of time – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 424A, 425, 425A, 477
Federal Circuit Court Rules 2001 (Cth) r 44.05
Cases cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Jess v Scott (1986) 12 FCR 187
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491; [2000] HCA 67
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284
SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319
SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 1 September 2023, 26 October 2023 Place: Perth (via Microsoft Teams) Applicant: In person Counsel for the First Respondent: Ms S Liddy Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1811 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHF19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
1 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application for an extension of time is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of China who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and on 7 November 2012 the Tribunal[1] affirmed the delegate’s decision. By an application filed on 9 June 2019, the applicant seeks an extension of time for judicial review of the Tribunal decision.
[1] At the time of the application to the Tribunal and the Tribunal decision, the Tribunal was known as the Refugee Review Tribunal. Following the Tribunals Amalgamation Act 2015 (Cth), the proper second respondent to this proceeding is the Administrative Appeals Tribunal.
For the reasons explained below, I have found that it is not necessary in the interests of the administration of justice to grant an extension of time of over six years in this matter and I therefore dismiss the application to the Court.
VISA APPLICATION AND DECISIONS
The applicant arrived in Australia in July 2007 as the holder of a Student Guardian visa. That visa expired in December 2007.
On 19 October 2011 the applicant applied for a protection visa. The applicant claimed to fear harm in China due to her conversion to Christianity.
The applicant attended an interview with an officer of the Minister’s Department to discuss her claims for protection on 6 February 2012. On 7 March 2012 a delegate of the Minister decided not to grant the applicant a protection visa.
On 4 April 2012 the applicant applied for review of the delegate’s decision by the Tribunal.
The applicant attended hearings before the Tribunal on 16 October 2012 and 19 October 2012. The Tribunal affirmed the delegate’s decision on 7 November 2012.
SUMMARY OF TRIBUNAL DECISION
The Tribunal carefully considered the life history and claims advanced by the applicant. The Tribunal accepted that the applicant had been tricked into marrying a man after the death of her parents but found there was nothing on the evidence before the Tribunal to indicate, and the applicant did not claim, that she would have any fear of harm if she returned to China on the basis of her marriage. The Tribunal considered the applicant’s evidence that she did not have a marriage certificate but found that there was no probative evidence before the Tribunal that she had any fear of harm for being unable to obtain an official marriage certificate.
The Tribunal accepted that the applicant was sterilised after giving birth to her second son, but found based on the applicant’s response to questions that she did not have any subjective fear of harm due to her sterilisation 20 years ago or for breaching the one child policy.
The Tribunal otherwise expressed serious concerns about the applicant’s credibility and expressed the view that the applicant had fabricated her core claims and provided untruthful evidence about her circumstances and past experiences in China to try to secure a protection visa to remain in Australia.
The Tribunal considered the applicant’s evidence about her claims based on religion to be inconsistent, confused and vague, and it was not satisfied with her responses to inconsistencies in her evidence that the Tribunal identified at the hearing. Based on these concerns, the Tribunal found that the applicant was not a credible witness and had not been truthful in her evidence. The Tribunal did not accept that the applicant was a Christian in China or that she attended any type of church in China. The Tribunal did not accept that the applicant’s husband or children attended church in China and did not accept that the applicant, or her husband or children, had experienced any past harm in China for reason of their religion. The Tribunal further found that the applicant would not engage in the practice of Christianity if she returned to China now or in the reasonably foreseeable future because she had no interest in that religion. The Tribunal therefore found that there was not a real chance that the applicant would face persecution because of her religion if she returned to China.
The Tribunal rejected the applicant’s claim that her husband’s Communist Party membership had been cancelled because he was caught at an illegal gathering, noting that the applicant had been unable to provide any information to substantiate this claim.
Based on these findings of fact, the Tribunal found that the applicant did not meet the criteria for a protection visa in s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).
APPLICATION FOR AN EXTENSION OF TIME
Documents before the Court
In her application to the Court, the applicant applied in writing for an extension of time and provided the following grounds of the application for an extension of time:
1. I did not receive the AAT decision until recently applied for FOI to access it.
2.The then agent failed to advise me of that my review application with AAT was refused.
3.The then agent failed to advise me of that I have the right to review with the court.
The application also set out the following proposed grounds of judicial review:
1. The Tribunal failed to afford procedural fairness.
2. The Tribunal failed to consider my case entirely.
3. I was unable to fully understand the interpreter provided by the Tribunal.
4.The Tribunal failed to disclose any certificate issued by the immigration department in accordance with sections 438 and 375 of the Migration Act.
The applicant filed an affidavit with her application to the Court. In this affidavit, the applicant simply deposed that she is the applicant and annexed a copy of the Tribunal decision. The applicant was required by r 44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth), which applied at the time of her application, to file, in support of her application, an affidavit explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.[2] The Court can dispense with the need for the applicant to comply with the Court rules, and I dispense with the need for the applicant to file an affidavit that explains the reasons for the delay and why the applicant considers it is necessary in the interests of the administration of justice for the Court to grant an extension of time. I instead afforded the applicant an opportunity to give oral evidence at the hearing.
[2] The same requirement is contained in r 29.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), which have applied since 1 September 2021.
The applicant did not file any amended application, further evidence, or submissions in accordance with an Order made by a Registrar of this Court on 4 March 2020.
The evidence relied on by the Minister (excluding affidavits of service) comprises the court book and an affidavit of Kristina Petrovski filed on 1 September 2023, which annexes a document that was inadvertently omitted from the court book. The Minister filed written submissions on 18 August 2023.
Hearing before the Court
The matter was listed for hearing on 1 September 2023. On that occasion the Court arranged for an interpreter in the Mandarin and English languages to assist the applicant, as this was what the applicant requested in her application to the Court.
The applicant raised concerns at the hearing and said that she could not proceed with a Mandarin interpreter because she did not speak Mandarin well enough and needed an interpreter in the Fuqing dialect. When the Court asked the applicant why she did not request an interpreter in the Fuqing dialect in her application, the applicant said that she forgot. If an applicant requires the assistance of an interpreter at a hearing, it is incumbent on the applicant to accurately identify the interpreter they need and not to request an interpreter for a language that they do not understand.
The Court adjourned the hearing to a different day to proceed with an interpreter who speaks the Fuqing dialect. There are very few interpreters who speak Fuqing dialect and who are available to assist the Court, and because of this, it was necessary to reschedule the further hearing that had been listed.
The matter came before the Court again on 26 October 2023 and on this occasion the applicant was assisted by a Fuqing interpreter. At a couple of points in the hearing, the applicant raised concerns about difficulties in understanding the interpreter. Given the difficulties in finding an available Fuqing interpreter, it was not reasonably practicable to adjourn the hearing to a different day with a different interpreter. The Court proceeded with the hearing, and I am satisfied that the applicant was able to effectively participate in the hearing to the extent that she chose to do so. In this regard, I make the following observations:
(a)At the start of the hearing, which proceeded by Microsoft Teams, there was a person sitting next to the applicant and speaking. When I explained that only the applicant could address the Court, the person sitting next to the applicant explained that he was assisting the applicant to understand the interpretation. I indicated that I would allow this person to continue to assist the applicant to understand the interpretation if she needed this. There was no audible indication after that to suggest that the applicant needed any further assistance from this person in understanding the interpretation.
(b)There were times during the hearing when there were exchanges between the applicant and the interpreter that appeared to be instances of seeking and providing clarification.
(c)There was a time shortly after the commencement of the hearing where the applicant raised concerns about understanding the interpreter. The interpreter confirmed that he was able to understand the applicant clearly. The applicant indicated that she needed the interpreter to speak more slowly and the interpreter spoke noticeably more slowly after this.
(d)Some of the times when the applicant indicated she did not understand were when legal or procedural issues were discussed. For example, when I indicated that the court book would be received into evidence and marked as exhibit 1, the applicant said she did not understand. The content of the comment was repeated in simpler language to indicate that the court book was in evidence.
(e)When the applicant was asked questions during the hearing, the responses she gave were logical responses to the questions asked, and the applicant also made comments during explanations and submissions that indicated she understood what was being said.
(f)At the conclusion of the hearing, I asked the applicant if she had been able to understand the interpreter, and she indicated that she had found it hard to understand. I also asked the applicant if there was anything further she wanted to say to the Court, and she confirmed that she had said everything she wanted to say.
I accept that there may have been times during the hearing where the applicant had some difficulties understanding, particularly when legal concepts were being discussed. These concepts were clarified when the applicant indicated she did not understand. Based on the coherent answers and comments made by the applicant during the hearing, her willingness to seek clarification when she did not understand, the fact that the interpreter spoke at a slower pace when requested to do so, and that the applicant had available to her a person who could assist her to understand, but did not appear to use that person after the opening minutes of the hearing, I am satisfied that the applicant was sufficiently able to understand and communicate with the interpreter to effectively participate in the hearing.
I also acknowledge that the applicant said she had not received the court book, even though a further copy of the court book had been provided to her after the first listed hearing on 1 September 2023. I have had regard to two affidavits of service filed on behalf of the Minister and I am satisfied that the applicant was served with a copy of the court book on at least two occasions. At the hearing, I had the court book displayed to the applicant on the screen, via Microsoft Teams, and explained to her the documents that were contained in the court book. During this explanation, the applicant indicated that even though she had received the court book, she had not been able to read it.
Relevant considerations in deciding whether to grant an extension of time
An application to the Court for judicial review of a decision of the Tribunal must be made within 35 days of the date of the Tribunal decision: s 477(1) of the Migration Act. Section 477(2) of the Migration Act allows the Court to extend the time within which the applicant may file an application for judicial review of the Tribunal’s decision if the applicant makes an application for an extension of time in writing and if the Court considers that it is necessary in the interests of the administration of justice to grant the extension of time.
The factors that the Court can take into consideration in deciding whether it is necessary in the interests of the administration of justice to grant the extension of time are not prescribed, but the Court will usually take into account considerations such as the length of the delay, whether there is an adequate explanation for the delay, any prejudice to the Minister and the merits of the proposed substantive application: see, for example, SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 at [46]-[48].
Length of the delay
The application was required to be filed within 35 days of 7 November 2012, being the date of the Tribunal decision. This means that to be filed within time, the judicial review application had to be filed by 12 December 2012. The application was instead filed on 9 June 2019. This is over 6 years outside of the time frame prescribed by s 477(1) of the Migration Act. The delay in this matter is extraordinary.
Explanation for the delay
Generally speaking, the longer the delay, the more persuasive the explanation for the delay will need to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]; Jess v Scott (1986) 12 FCR 187 at 195. In circumstances where the delay is over six years, the applicant’s explanation for the delay would need to be particularly persuasive for the Court to consider that it amounts to an adequate explanation for the delay.
The applicant set out reasons for the delay in her application, including that she was not provided with a copy of the Tribunal decision until she recently made a freedom of information request, and her agent at the time did not inform her of the decision or her review rights. As indicated above, the applicant did not provide any affidavit evidence to support these reasons. In her oral evidence to the Court, the applicant simply said that her first agent did not tell her about this, and she mentioned it to friends who told her to get another agent.
In my view, the applicant has not provided an adequate explanation for the delay, and certainly not an explanation that would justify granting an extension of time of over six years.
The applicant’s evidence is vague and lacking in meaningful detail. I do not accept, based on the limited detail in the applicant’s oral evidence, that she was not advised of the outcome of the Tribunal’s review. Even if I am wrong in this finding, the applicant has not provided evidence of any steps she took to follow up the progress of her matter with her agent over the next six years after her Tribunal hearing. It is implausible that the applicant would take no steps to find out the outcome of her review application over a period of six years if she had not been told this by her agent.
Any ignorance on the part of the applicant about her capacity to bring a judicial review proceeding does not generally amount to a satisfactory explanation for the delay: SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 (SZSDA) at [38]. It was up to the applicant to inform herself about her review rights.
The absence of an adequate explanation for a delay of over six years weighs strongly against the grant of an extension of time.
Prejudice to the Minister
The Minister has not claimed prejudice as a result of the delay, beyond the public interest in the finality of administrative decision-making, citing Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491; [2000] HCA 67. In that case, McHugh J said at [15]:
Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
I accept that there is an interest in the finality of administrative decision-making and that the Minister is not prejudiced by the delay beyond this interest.
Merits of the proposed substantive application
In considering whether or not an extension of time should be granted, the Court will often consider the merits of the proposed judicial review application at a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [62]-[63]. However, the Court is not required to confine its consideration of the merits to an assessment at a reasonably impressionistic level: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28 [17]-[19] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [49] (Gordon, Edelman and Steward JJ).
It is well accepted that it is generally not in the interests of the administration of justice to grant an extension of time where the proposed substantive application has no realistic prospects of success: SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]; SZSDA at [39]. It is also well accepted that the effect of a limitation period on commencing a proceeding ‘may often result in a good cause of action being defeated’: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 553.
In the present matter, I have considered the applicant’s grounds at a reasonably impressionistic level and I am not satisfied that the grounds have reasonable prospects of success sufficient to warrant the grant of an extension of time.
By ground 1, the applicant asserts that the Tribunal did not afford her procedural fairness. I asked the applicant at the hearing why she believes the Tribunal acted unfairly and she declined to say anything in response.
The Minister submitted that the Tribunal complied with its obligations in the Migration Act. In particular, the Minister submitted that:
(a)the Tribunal invited the applicant to attend a hearing on 16 October 2012 and 19 October 2012 and the invitation to attend the hearing complied with the requirements of ss 425 and 425A of the Migration Act;
(b)the applicant was on notice of the determinative issue from both the delegate’s decision and the Tribunal’s questions at the hearing; and
(c)there was no information that the Tribunal was required to put to the applicant pursuant to s 424A of the Migration Act, in circumstances where the Tribunal’s decision was based on country information, written information provided by the applicant to the Department and the applicant’s oral evidence at the hearing.
I accept these submissions and I agree that there is nothing apparent on the materials before the Court to suggest that the Tribunal denied the applicant procedural fairness. I further note that the Tribunal set out in its reasons a detailed summary of the questions it put to the applicant at the hearing and the applicant’s responses to those questions. From this, it appears that the Tribunal was very thorough in giving the applicant an opportunity to comment on country information that was not consistent with her claims and the Tribunal’s concerns about the applicant’s evidence.
Ground 1 has no reasonable prospects of success.
By ground 2, the applicant asserts that the Tribunal failed to consider her case entirely. At the hearing before the Court, I asked the applicant what part of her case she believes the Tribunal did not consider and she again declined to answer.
The Tribunal’s reasons in this matter are comprehensive. The Tribunal carefully set out the evidence relating to the claims advanced by the applicant and considered that evidence in making findings on her claims. The Tribunal also addressed matters which arose on the evidence before it, but in relation to which the applicant had not expressly claimed to face harm, such as her forced sterilisation, her breach of the one child policy and matters relating to her marriage.
There is no evidence before the Court to suggest that the Tribunal failed to consider all claims advanced by the applicant. Ground 2 has no reasonable prospects of success.
By ground 3, the applicant asserted that she was unable to understand the interpreter provided by the Tribunal.
The Tribunal recorded at [25]-[26] of its reasons:
25. The applicant appeared before the Tribunal at the first hearing on 16 October 2012 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The interpreter stated that she and the applicant were having difficulties communicating. The Tribunal explained to the applicant that it was important that she had an opportunity to present her case fully and that it would reschedule the hearing at a time when an interpreter in the Fuqing dialect could be arranged.
26. The applicant appeared before the Tribunal on 19 October 2012. That hearing was conducted with the assistance of an interpreter in the Fuqing and English languages.
While it is apparent from this that there were communication difficulties at the first hearing before the Tribunal, the Tribunal addressed this by holding a second hearing with an interpreter in the Fuqing dialect. There is no evidence before the Court to suggest that the applicant had any difficulties understanding the interpreter at the second hearing, and the applicant appears to have been afforded an opportunity to give evidence and present arguments at the second hearing. In circumstances where the Tribunal held a second hearing to overcome the communication difficulties at the first hearing, there is no realistic prospect of the applicant being able to establish that the Tribunal denied her procedural fairness based on any difficulties in understanding the interpreter. The applicant did not make any submission to the Court about this proposed ground.
By ground 4, the applicant asserts that the Tribunal decision is affected by jurisdictional error on the basis that the Tribunal failed to disclose any certificate issued by the immigration department in accordance with ss 438 or 375 of the Migration Act. There is no evidence before the Court that any certificate was issued in this matter. In these circumstances, the ground has no reasonable prospects of success.
The lack of merit in the proposed substantive application weighs strongly against the grant of an extension of time.
CONCLUSION ON THE EXTENSION OF TIME APPLICATION
Taking into account the matters considered above, and in particular, the extraordinary length of the delay, the lack of adequate explanation for that delay and the lack of merit in the proposed substantive application, it is not in the interests of the administration of justice to make an order extending the time for the applicant to seek judicial review of the Tribunal decision. The application for an extension of time is therefore dismissed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 1 November 2023
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