CHZ18 v Minister for Home Affairs
[2019] FCCA 1855
•31 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHZ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1855 |
| Catchwords: PRACTICE AND PROCEDURE – Where applicant makes oral application for adjournment – where there is insufficient merit to ground upon which adjournment sought – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 375, 376, 425, 477 |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358 AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 CDV17 v Minister for Immigration and Border Protection [2019] FCA 726 CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354 DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10 Gallo v Dawson (1990) 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Kio v Minister for Home Affairs [2019] FCA 579 Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 |
| Applicant: | CHZ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1218 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 21 June 2019 |
| Date of Last Submission: | 21 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 31 July 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor Advocate for the Respondents: | Mr Sypott |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application to extend the time within which an application be made to seek judicial review of the decision of the Administrative Appeals Tribunal dated 16 November 2017 be dismissed.
The applicant pay the costs of the first respondent fixed at $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1218 of 2018
| CHZ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 7 May 2018, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 November 2017 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa). The applicant also sought an extension of time within which to seek judicial review.
The application for an extension of time, which is some 135 days out of time, should be refused. The explanation for the significant delay in filing the application was not satisfactory. While the Minister did not submit that the issue of prejudice was relevant to the application, I do not consider the proposed grounds of review are sufficiently arguable as to support a conclusion an extension should be granted.
Background
The applicant, a 25 year old Indian national, first arrived in Australia on 21 June 2014 as the holder of a Student (Class TU) (Subclass 573) visa. The Student visa was cancelled on 14 January 2017.
On 30 May 2017, the applicant was taken into immigration detention. On 25 July 2017, the applicant applied for a Protection visa, claiming to fear harm from members of the “Vicky Kandra Gang” in India who were trying to kill him because, he said, thought he was an associate of a murderer who had killed one of their friends.
On 14 August 2017, the delegate, not being satisfied that the applicant was a person to whom Australia owed protection obligations, refused to grant the visa: Migration Act 1958 (Cth) (Act), ss 36(2)(a), 36(2)(aa).
On 21 August 2017, the applicant lodged an application with the Tribunal for review of the delegate's decision. Pursuant to the Tribunal’s request, on 19 October 2017 the Department provided the applicant's Student visa file, which included a non-disclosure certificate purportedly issued pursuant to s 376 of the Act.
On 9 October 2017, the applicant was invited to appear before the Tribunal on 10 November 2017 to give evidence and present arguments relating to issues under review. The applicant attended via video link from Yongah Hill Immigration Detention Centre and was assisted with the facility of a Punjabi interpreter.
On 16 November 2017, the Tribunal affirmed the delegate's decision to refuse to grant the applicant a Protection visa, providing a statement of reasons (Reasons) for its decision.
Procedural History
On 7 May 2018, the applicant filed an application for judicial review of the Tribunal's decision. He included in that application a request for an extension of time pursuant to s 477 of the Act. The applicant also filed an affidavit affirmed on 24 April 2018, in which he deposed:
(1) That I am the main applicant in this migration litigation.
(2) All the information provided in the forms, affidavits and proceeding is true and valid.
(3) The application should be considered according to the law.
(4) The decision of the AAT, made on 16 November 2017, should be quashed.
(5) The second respondent in making the decision did not comply with rules of natural justice and I the applicant was denied procedural fairness.
(6) The second respondent decision included the error of the law.
(7) The second respondent took in account irrelevant considerations.
(8) The second respondent's decision was unreasonable.
(9) The second respondent failed to took (sic) into account the relevant considerations.
(10) The decision of the respondent failed to meet the refugee law when making the decision.
(11) I believe the tribunal made an error in coming to its decision due to my inability to prepare, and prepare a proper case and therefore a meaningful opportunity to be heard by denying me procedural fairness.
(12) The second respondent also made an error by finding that I do not engage the protections afforded at s.36(2)(a) of the Act therefore misapplying and misconstrued the s.36(2)(a) and 36(2)(aa).
(13) The second respondent has not considered each of the integers of my claim of the serious harm discussed with respect to my claims for refugees protection in the context of the complementary protection criterion regarding the real significant harm at s. 36(2aa).
(14) The second respondent's conclusion in making the decision is vague and is without considering the facts of my recent country report information.
(15) The acknowledged difficulties of preparing and presenting my case I am from a different social, ethic and cultural background and the difficulties I have with the English language. Moreover, I believe the decision-maker misinterpreted their obligations to consider representations I made to mitigate my offending behaviour as non-refoulement obligations.
The applicant exhibited to his affidavit a copy of the Tribunal's Reasons. The particulars of jurat to the applicant's affidavit were apparently completed by the applicant without the need for an interpreter. The foot of the second page of the affidavit contained provision for "alternative jurat for non-English speaking affidavit". Page 3 of the affidavit, which had not been completed, provided for the affidavit to be affirmed through the interpretation of an interpreter.
Before me, the applicant appeared with the assistance of an interpreter. At one point in the hearing, it appeared the applicant was in need of a glass of water. When this offer was made to him, he conversed with me in English in a lucid and forthright manner. He was not to be criticised for deciding that it would be appropriate to make his submissions through the interpreter who was provided to assist him.
By his Response filed on 29 May, 2018, the Minister opposed the application for an extension of time on the ground that the applicant had not adequately explained the delay in seeking judicial review and that no proper ground of review was disclosed.
On 13 June 2018, orders were made by consent regulating the preparation of the application for final hearing. Those orders also afforded the applicant an opportunity to file and serve an amended application, further evidence and written submissions. The applicant did not take those opportunities.
Although the matter was listed for hearing at 11.30am on 21 June 2019, the applicant did not appear at that time. As it was evident the applicant was self-represented, the matter was stood down for some time. The applicant eventually arrived at court. I explained to the applicant the need for him to provide reasons for his delay in filing the application in order to address the question of whether the Minister suffered any prejudice, and whether his grounds of review were sufficiently arguable that an extension of time should be granted.
Adjournment
After some time, the applicant said that he wanted to see a lawyer. Contextually, the applicant submitted that he had a lawyer who was representing him in relation to certain criminal charges presently pending before the Magistrates’ Court. He did not elaborate upon the nature of the charges that he is addressing before that court.
After some consideration, I refused that application.
An application for an adjournment is not automatic but calls for the exercise of judicial discretion: cfGallo v Dawson (1990) 93 ALR 479, 480 (McHugh J). Indeed, inherent in the grant of a discretionary power, is an assumption that such applications will sometimes be refused: Jackamarra v Krakouer (1998) 195 CLR 516, 540 (Kirby J), see also at 519-521 (Brennan CJ and McHugh J). More recently, in DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10, [83], Rangiah J, with whom Reeves and Bromich JJ agreed, stated:
An adjournment is not granted merely for the asking. Wider issues are in play, even if they were not expressly referred to by the trial judge. As Toohey and Gaudron JJ observed in Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 at 636:
The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales.The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard.
See also, CDV17 v Minister for Immigration and Border Protection [2019] FCA 726, [32] (Snaden J).
Upon my review of the matter, the applicant has had more than adequate opportunity to prepare for and present submissions for his application for an extension of time. As long ago as June 2018, he consented to orders listing the matter for hearing. As counsel for the Minister submitted, in making his application, the applicant had been provided with forms informing him of his right to apply for legal assistance. He has not done so since May 2018.
A party’s inability to have a lawyer represent them at a hearing is not always a sufficient or adequate reason to adjourn a proceeding.
As I stated to the applicant in the course of the hearing, the demands of business upon this court and considerations of case management required me to take into account that this matter had been listed for hearing by consent, and that another litigant had lost the opportunity for a hearing at the time and date which had been allocated to this case.
In all the circumstances, I was not satisfied that there was any sufficient merit in the request for an adjournment of the hearing. Accordingly, I proceeded with the hearing of the application for an extension of time in which to seek judicial review.
Extension of Time
Applicable Principles
By s 477(1), a 35-day time limit is fixed for the making of an application for judicial review of a migration decision. The court may extend the time for filing an application: s 477(2).
The power to extend time is made subject to two conditions: (1) an application has been made in writing for such an extension; and (2) the court is satisfied that it is necessary in the interests of administration of justice to do so.[1] The first of those conditions was met by the request for an extension as made in the application for judicial review. The second condition is in issue.
[1]For the avoidance of doubt, the 35 day time limit commences from the date of the migration decision, irrespective of the validity of the decision: see s 477(3)-(5).
The discretion to extend time for the commencement of proceedings is a deliberately broad one.[2] It is well-settled that in the determination of whether an extension of time should be granted, the court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent if the extension was granted, the merits of the substantive application and any other factor considered to be relevant.[3]
[2]Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249, [25].
[3]Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9; SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725, [21]; SZNFR v Minister for Immigration and Citizenship [2009] FCA 851, [12]; SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109, [16]; MZZQA v Minister for Immigration and Border Protection [2016] FCA 584, [8]; CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354, [4]; AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358, [10]-[11].
While the discretion is broad, the court should not grant an application for an extension of time unless it is proper to do so. That this is so brings to attention that legislative time limits are not to be ignored.[4] Equally, the discretion conferred recognises that there will be cases in which, although no prejudice may be sustained by the Minister, the consequences for an applicant in losing a right of review are real.
[4] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348.
The grounds of the application for an extension of time read:
1. The acknowledged difficulties of preparing and presenting my case. I am from a different social, ethnic and cultural background, and the difficulties I have with English language.
2. Due to lack of legal assistance and unable to apprehend the process involving to seek judicial review.
3. Lack of expertise in the area of Court processes.
4. Lack of duty of care by the Serco (Immigration Detention) officials by not performing their duty and therefore not forwarding my Federal Circuit Court application at the designated registry court as the application handed to them by hand to submit, but upon confirmation from court, I was informed there were no legal proceeding present in the court records.
5. I was astray, misguided and was not informed about the status of application and acknowledgement.
I have considered those matters in the context of the matters contained in the applicant’s affidavit as set out above.
Length of Delay and Explanation
The application was made 137 days after expiry of the time fixed for in making of an application for judicial review.
Where an extension is sought following a lengthy delay before making the application, it would, in general, require exceptional circumstances to be properly explained in order for the court to be satisfied it was necessary in the interests of justice to grant that relief. In my opinion, the delay in this case is a factor which deserves significant weight.[5]
[5] Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89, [3] (Gageler J);
DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95, [23]-[24].
In such applications, one approach is to focus on the adequacy of the explanation for the delay. This approach has been preferred on the basis that, after the grant of leave, the merits of the grounds can be more fully evaluated.[6] Yet, as the discretion is deliberately broad, the combined considerations of delay and the absence of an adequate explanation may support a decision to refuse an extension notwithstanding that a finding of jurisdictional error might be made: AZAFJ v Minister for Immigration and Border Protection. There, Bromwich J stated:
… [where] the claim of jurisdictional error is at best questionable and the delay is both substantial … and without any real explanation, let alone a satisfactory explanation, that will tend to support declining to exercise a discretion to intervene.[7]
[6] MZABP v Minister for Immigration and Border Protection (2016) 242 FCR 585, [56]
(Mortimer J).
[7] [2016] FCA 291, [58] (Bromwich J).
The applicant has been afforded several opportunities to file evidence in support of his application for an extension of time. The affidavit filed with the application for judicial review has been set out above and does not address in any real way an explanation for the applicant’s failure to file the application within the time fixed by section 477(1) of the Act. Further, the consent order made on 13 June 2018 afforded the applicant an opportunity to file any further affidavit. He did not do so. He did not do so in circumstances where he had been on notice since the Minister’s response was served which explicitly identified that:
The applicant has not adequately explained the delay in seeking judicial review.
No documentary or other evidence was adduced by the applicant to provide any support for his oral submission that he had been ‘unwell.’
In this case, the delay was significant and in my opinion, no adequate explanation for the delay has been proffered.
Prejudice
While the Minister accepted that he would not suffer any prejudice in responding to the application if the court were to grant an extension of time, the absence of prejudice does not of itself support a conclusion that it is necessary and in the interests of the administration of justice to grant an extension.[8]
[8]Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344, 349; SZSQL v Minister for Immigration and Border Protection (2015) FCA 294, [15]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86, [6] (the Court).
Merits of Proposed Application
The Minister opposed the application on the substantive basis that there was insufficient merit in the proposed grounds of review to warrant an extension of time. Expressed in positive terms, if the court concluded that there was no sufficiently arguable merit to the substantive application, it is not necessary, in the interests of the administration of justice, to exercise the power to grant an extension of time.
As the authorities confirm, if an extension of time is to be granted, the court must be satisfied that it is in the interests of justice to do so: SZSZW v Minister for Immigration and Border Protection;[9] MZABP v Minister for Immigration and Border Protection.[10] Whether an extension of time should be granted will depend upon the particular circumstances of each case: Mentink v Minister for Home Affairs.[11]
[9][2018] FCAFC 82, [27] (Collier, Wigney and Gleeson JJ).
[10][2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ).
[11] [2013] FCAFC 113, [32]-[38] (Edmunds, Griffiths, Pagone JJ).
In MZABP, the Full Court endorsed statements by Mortimer J that the approach to be taken to a preliminary examination of the merits of a substantive application necessarily involved recognition that the grounds had not been as fully considered, developed and argued as if on a final hearing and, accordingly, that it was not a function appropriate to the exercise of discretion to grant an extension of time to undertake a fuller consideration of the merits of the substantive claim. Mortimer J’s reasoning is instructive:[12]
. . . it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer[13]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” . . .
The Full Court’s endorsement of Her Honour’s use of the criterion ‘reasonable prospects of success’ is apparent. This criterion is akin to that employed in an application for summary judgment where the court is authorised to dismiss a claim or defence where it is considered to have no reasonable prospects of success.[14] It is a criterion which is long accepted as posing a lower threshold than that which is applied on the final determination of the issues in a proceeding.
[12]MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, [62]-[63].
[13](1998) 195 CLR 516, [7]-[9].
[14] cfSpencer v Commonwealth (2010) 241 CLR 118.
The trend of authority favours an approach to the determination of whether it is necessary in the interests of the administration of justice to grant an extension of time that the merits of the application should be evaluated at a reasonably impressionistic level such that the court is satisfied to a degree of confidence whether the grounds of review are arguable, reasonably arguable, sufficiently arguable or plainly hopeless. Further, in the consideration of whether the grounds of an application are sufficiently arguable, the court is not confined to a consideration of the proposed grounds of review but must also engage with the reasons of the Tribunal to consider whether the grounds are of any substance: see SZSZW v Minister for Immigration and Border Protection at first instance[15] and on appeal;[16] Kio v Minister for Home Affairs.[17] Those authorities confirm that the discretion is deliberately broad.
[15][2017] FCA 1544, [14]-[17] (Perry J) citing MZABP; DMI16 v Minister for Immigration and Border Protection [2017] FCA 1179, [33]-[36] (Robertson J).
[16] [2018] FCAFC 82, [26]-[27] (The Court).
[17] [2019] FCA 579, [4], [10].
By his application, the applicant stated that the grounds upon which judicial review was sought were set out in his accompanying affidavit. The text of that affidavit has been set out above. Some of the paragraphs of the affidavit provided a historical context. A number of the paragraphs of that affidavit might collectively be considered as identifying particular grounds of review. I address them below. Quite apart from the grounds of review, I have re-examined the Reasons, conscious that the applicant was self-represented.
Procedural Fairness (paras 5, 11 and 15)
I do not accept that the Tribunal’s decision or the manner of hearing the application indicate any want of procedural fairness.
The applicant was invited to a hearing, in accordance with s 425 of the Act. The applicant participated in that hearing. He did so via video link by reason that upon the cancellation of his Student visa he had been placed in immigration detention. The applicant was assisted at the hearing by the provision of a Punjabi interpreter.
The Reasons disclose no basis for a conclusion that there were any difficulties encountered by the applicant either in relation to the video link or the interpreter which were provided. Nothing in the applicant’s affidavit contains any basis for a contrary conclusion.
Error of Law (paras 6, 10 and 12)
The Reasons make clear that the Tribunal correctly identified the legal framework of the Act within which the decision should be considered in relation to whether the applicant was entitled to refugee protection and complementary protection under ss 36(2)(a) and 36(2)(aa).
Nothing in the Reasons provides any basis for a conclusion that the Tribunal failed to apply the correct criteria to the application for merits review of the delegate’s decision to refuse the Protection visa.
I agree in the Minister’s submission that no arguable case for relief is raised by these paragraphs of the applicant’s affidavit.
Irrelevant and Relevant Considerations and Integers of Claims (paras 7, 9 and 13)
The applicant’s affidavit made wholly unparticularised complaints in relation to these matters. In that context, these grounds of complaint were liable to be dismissed.
No arguable case for relief is raised by these paragraphs of the applicant’s affidavit as supporting a conclusion that the Tribunal took into account irrelevant considerations or that it failed to take relevant considerations into account. Likewise, absent any particulars, I do not discern that there was any failure to consider an integer of the applicant’s claims.
Legal Unreasonableness (paras 5, 8, 11 and 15)
The Tribunal found that the applicant was not a witness of truth, and that the account of events on which his protection claims were based were false: Reasons [22]. The Reasons identified the bases on which the Tribunal reached that decision: Reasons [17-20].
When addressing the topic ‘credibility concerns’, the Tribunal also found that the applicant had not been able satisfactorily to explain his delay in seeking a Protection visa. Contextually, the applicant had arrived in Australia in 2014 and not applied for a Protection visa until July 2017, nearly two months after being placed in detention (following the cancellation of his Student visa). The Tribunal found that a person in the applicant’s circumstances would not have been content to rely on a temporary visa in the hope of eventually obtaining permanent residence as a means of ensuring his safety: Reasons [14].
It was only at the conclusion of the hearing that the applicant made a request for time to produce a newspaper report said to be relevant to the murder upon which his claim for protection was, in part, based. When this application was refused, the applicant then asked if the Tribunal could call his aunt in order to corroborate his claim that he had lived with her for a period in order to avoid harm from gangsters. The Tribunal refused that request also: Reasons [23-24].
Having concluded that the applicant was not a witness of truth and that his protection claims were false, the Tribunal decided that there was not a real chance of the applicant suffering serious harm or significant harm so as to satisfy the criteria presented by ss 32(2)(a) and 36(2)(aa).
As concerned the non-disclosure certificate, the Tribunal stated that there was no need to disclose this to the applicant as it had been irrelevant to the grounds on which the review was determined. The Tribunal said that it was concerned with the credibility of the applicant on the basis of his delay in seeking protection and the inconsistencies in his evidence. The Tribunal eschewed any concern as to the manner in which the applicant had obtained his Student visa, and did not rely upon that as a factor in deciding to affirm the delegate’s decision. It regarded the manner in which the applicant may have obtained a Student visa as being irrelevant to its consideration of the application for merits review: Reasons, [28].
In short, the Tribunal rejected the applicant’s claims in their entirety, doing so on the combined bases of adverse credibility findings, the identified inconsistencies in the applicant’s protection claims and his delay in lodging an application for a Protection visa.
I am satisfied that the Tribunal’s reasoning displays an evident and intelligible justification for its decision to affirm the delegate’s decision.[18] Conversely, I am not satisfied that the mattes raised in the applicant’s affidavit disclose an arguable basis for challenge grounded on legal unreasonableness or otherwise.
[18] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [76] (Hayne, Kiefel and Bell JJ).
Vagueness of Conclusion – Country Information (para 14)
The Tribunal was unambiguous in expressing its conclusion that the applicant was not owed refugee protection or complementary protection. I agree in the Minister’s submission that it cannot be said the Tribunal’s conclusion was vague.
Insofar as the applicant’s affidavit made an unparticularised complaint regarding the use of country information, it is apparent that the applicant had lodged no country information – either with the delegate or with the Tribunal – in support of his application for protection. Those combined circumstances undermine a conclusion that the Tribunal was being criticised for a failure to consider any information that may have been supplied by the applicant. None was supplied.
The applicant’s complaint might instead be understood as a reference to its notation that it had not relied on a DFAT country information report, ‘India’, dated 15 July 2015. In this connection, the applicant has made no submissions in relation to the report and has not identified how it was material or necessary for the consideration of the matter.
Having regard to the basis upon which the application was dismissed by the Tribunal, I am satisfied that it’s decision not to rely upon that information was not in any way material or relevant to its decision and that the applicant has not raised an arguable basis for challenge in this regard.
Misinterpreting obligations (para 15)
This paragraph of the applicant’s affidavit raises no arguable case for relief.
Non-disclosure certificate
As noted above, the Tribunal had before it a non-disclosure certificate that had purportedly been issued pursuant to s 376 of the Act. The certificate related to a single-page document, being a file note of a Departmental officer, which contained references linking the applicant’s Student visa application with the provision of false documentation.
The stated basis for the certificate was that the information contained in that document had been given to the Department in confidence such that s 375A did not apply to the information.[19] The Minister accepted that the certificate was likely invalid. Contrary to the certificate, s 375A did not apply to the underlying document.[20]
[19] See Act, s 376(1)(b).
[20] Act s 376(1)(b).
The Minister submitted, correctly, that the certificate was invalid. Contrary to the basis on which the certificate was proffered, the information in question had not been provided to the Department in confidence. Rather, it was simply a Departmental officer’s file note relating to a concern respecting matters related to the applicant’s Student visa.
I accept the Minister’s submission that where a non-disclosure certificate is invalid, the non-notification of that certificate is an unauthorised act but would only lead the Tribunal to jurisdictional error where that breach has had a material effect on its decision.[21]
[21] Minister for Immigration & Border Protection v SZMTA [2019] HCA 3, [44] (Bell, Gageler
and Keane JJ).
Since the Tribunal found that the file note was not relevant to the application on the grounds upon which it had determined to affirm the delegate’s decision, I consider that the Tribunal had not fallen into jurisdictional error by failing to disclose to the applicant the fact of the certificate or the underlying document.
Tribunal’s refusal of adjournment – applicable principles
In appropriate circumstances, the Tribunal may commit jurisdictional error by acting in a way that was legally unreasonable in refusing an application for an adjournment. In Minister for Immigration and Citizenship v Li, Gageler J stated:[22]
The MRT fails to comply with a requirement essential to the valid performance of its duty to review a particular decision if it fails to consider the exercise of its power to adjourn that review in circumstances where no reasonable tribunal could fail to do so. The MRT fails to comply with requirements essential to the valid performance of that duty and to the valid exercise of that power where, having considered the exercise of that power, the MRT fails to exercise that power so as to adjourn the review in circumstances where no reasonable tribunal could fail to adjourn the review. If an unreasonable failure to adjourn is material to the outcome, such decision as the MRT goes on in fact to make on the review is invalid.
[22] (2013) 249 CLR 332, [103].
The test of legal unreasonableness is stringent and the cases in which it will be established are rare. That is because the court’s role on judicial review is supervisory and confined: “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.”[23]
[23]Attorney-General (NSW) v Quin (1990) 170 CLR 1, [36] (Brennan J); SZVFW, supra (2018) 357 ALR 408, [51].
For the reasons above, I do not accept that it was unreasonable, in the requisite sense, for the Tribunal to decline the applicant’s requests to postpone the hearing in order that he could produce a newspaper article. Nor was it unreasonable in any sense to refuse the applicant’s request that the Tribunal should call his aunt to make inquiries or obtain evidence from her. The applicant was properly afforded an opportunity to present evidence and arguments in relation to the issues arising on the decision under review. There was no failure on the part of the Tribunal in deciding to refuse the applicant’s request that it should contact his aunt for the purpose of conducting its merits review of the delegate’s decision.
The applicant also complained of a lack of duty of care by Serco for not forwarding his application for judicial review to the court’s registry. By this complaint, the applicant appears to assert implicitly that, while he had performed the necessary actions to make a judicial application within the prescribed timeframe, it was not received by the court’s registry and that this was due to Serco’s negligence. However, apart from his assertion, the applicant has provided no evidence of the existence of a judicial application earlier than 7 May 2018. I do not consider that the applicant has shown an arguable basis for contesting the Tribunal’s decision on this ground.
Conclusion
I have concluded that the applicant has not provided a satisfactory explanation for his delay in filing the application. Even though the question of prejudice was considered in his favour, I do not consider that the applicant’s affidavit discloses any arguable grounds of review.
For those reasons, I am not satisfied that it is necessary in the interests of the administration of justice to grant the application for an extension of time in which to apply for judicial review. Nor, in my opinion, would it be otherwise appropriate in the exercise of discretion to do so. The application is refused with costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 31 July 2019
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