CIP16 v Minister for Immigration
[2019] FCCA 17
•16 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CIP16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 17 |
| Catchwords: PRACTICE AND PROCEDURE – Application to extend time in which to file application for judicial review – factors for consideration – whether explanation for delay – whether merit in grounds of proposed judicial review application. |
| Legislation: Evidence Act 1995 (Cth), s.56(2) Migration Act 1958 (Cth), Pt.7, Div.4, ss.5J, 91R, 441A, 441C, 476, 477 Federal Circuit Court Rules 2001 (Cth), rr.1.06, 3.05, 13.03A, 13.03B, 44.05 |
| Cases cited: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68; (2016) 241 FCR 30; (2016) 338 ALR 551 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 NAHI v Minister for Immigrations & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | CIP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 386 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing date: | 30 May 2018 |
| Date of Last Submission: | 30 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 16 January 2019 |
REPRESENTATION
| Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That an extension of time pursuant to r.3.05 of the Federal Circuit Court Rules 2001 (Cth) in which to file the applicant’s affidavit sworn 7 May 2018 be refused.
That the applicant’s application pursuant to s.477(2) of the Migration Act 1958 (Cth) for an extension of time in which to file an application pursuant to s.476 of the Migration Act 1958 (Cth) be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 386 of 2016
| CIP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks an extension of time in which to file an application for judicial review (“Proposed Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 30 June 2016. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant the applicant a Protection (Class XA) visa (“Protection Visa”). The Tribunal Decision appears at Court Book (“CB”) 112-131.
The applicant has lodged the Proposed Judicial Review Application 19 days after the expiry of the time limit prescribed by s.477(1) of the Migration Act for the filing of a valid judicial review application. For the Court to determine the Judicial Review Application it must first determine if an extension of time in which to file the Proposed Judicial Review Application ought be granted pursuant to s.477(2) of the Migration Act.
Background
The background to the Proposed Judicial Review Application is as follows:
a)the applicant, a citizen of Ethiopia, first arrived in Australia on 21 December 2010 as the holder of a Prospective Marriage visa: CB 15-16;
b)the Prospective Marriage visa ceased on 9 February 2012 after the applicant separated from his spouse: CB 74;
c)for a period between 18 October 2013 and 28 August 2014 the applicant remained in Australia as an unlawful non-citizen: CB 74;
d)on 3 October 2014 the applicant applied for the Protection Visa making the following claims:
i)the situation in Ethiopia was very bad prior to his leaving for his marriage because of Islamic religion, politics, war and fighting between the neighbouring countries of Eritrea and Somalia: CB 20;
ii)he is an orthodox Christian, and on 21 May 2005 Muslims firebombed his local church where the applicant served and he was injured and three people died, so he has a fear of being killed by Muslims because of his religion if he returns: CB 21;
iii)the Muslims, and even the defence and military, will harm him because of the very bad situation in the country including the Islamic religion, politics, war fighting, hunger and drought, and though his friends, family and the news sometimes say the situation calms down, the religion situation remains very bad: CB 22; and
iv)the authorities, military and the government cannot save and protect people as they lost control during the crisis, and cannot protect the people, especially concerning their religion: CB 23;
e)on 19 February 2015 the Delegate’s Decision was to refuse the applicant a Protection Visa: CB 72-81;
f)on 10 March 2015 the applicant applied for review of the Delegate’s Decision by the Tribunal: CB 82-92;
g)the applicant attended a hearing before the Tribunal on 6 May 2016: CB 101 (“Tribunal Hearing”), and he subsequently provided supporting documents to the Tribunal including letters regarding Medicare and Centrelink, and some very limited information on attacks in Ethiopia: CB 105-108;
h)on 30 June 2016 the Tribunal Decision was to affirm the Delegate’s Decision to refuse the applicant a Protection Visa: CB 112-134; and
i)on 8 July 2016 the applicant attended the Tribunal office in Perth stating he had not received his documents, and upon advising he had changed his email address the Tribunal officer printed a copy of the Tribunal Decision for the applicant: CB 135. There is no evidence that the applicant advised the Tribunal of his change of address prior to 8 July 2016.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)summarised the applicant’s history, the claims made in his Protection Visa application and the Delegate’s Decision, in particular noting the Delegate found the applicant’s claims were not credible or genuine: CB 113-114 at [3]-[14];
b)recorded that the applicant began his sworn oral evidence by saying he has been in Australia for five years, he has no financial support so he cannot afford a lawyer, he is receiving payments under the Status Resolution Support (SRS) mechanism through Centrelink and he completed 15 years of study in Ethiopia where he worked as a storeman: CB 114 at [16]-[20];
c)asked how the applicant met his wife, if he had worked in Australia and why he remained as an unlawful non-citizen for almost 10 months, the Tribunal noted that the applicant said he met his wife when she was visiting Ethiopia, that they married, and he then travelled to Australia and she then “kicked him out”, and that while he does not have work rights now he has worked as a cleaner for two companies but was sacked because he did not have permanent resident status and he was unlawful for that period as he did not know the system, and he was new and had language problems: CB 115 at [16]-[23];
d)detailed at length the responses the applicant made to the Tribunal regarding his fears of harm in Ethiopia, including his Christian beliefs, the firebombing in May 2005 and the applicant’s role as a deacon, while specifically noting the applicant stated he has not engaged in any political activity previously, he had not faced any ethnic trouble and that he does not fear any particular person, rather as he lived in a Muslim suburb he was targeted because “Muslims generally target non-Muslims”: CB 115-116 at [24]-[39];
e)put to the applicant its concern regarding his three and a half year delay in applying for a Protection Visa, to which he responded he had no knowledge of the law and it was not until he went to a "refugee office" in Victoria Park that someone told him he could apply for protection: CB 116 at [39];
f)referred the applicant to his written statement where he declared that the reason for coming to Australia was for marriage, and that it might find that such an emphasis may undermine his claims for protection, to which he claimed that it was not his writing and maybe there was a translation mistake in respect of the application form: CB 117 at [40];
g)alerted the applicant to an absence of any country information or reports confirming the firebombing in 2005, and to other sources of country information indicating that violence between religious groups in Ethiopia is rare, and that Ethiopia is predominantly Christian with 44% of the population being Ethiopian Orthodox Christians: CB 117 at [41]-[42];
h)referred the applicant to its concern that he had given inconsistent information as to the claimed firebombing incident, referring to it occurring on 21 May 2005, but at the Tribunal Hearing indicating it occurred in 2007, that before the Delegate he had claimed that three people were killed during the firebombing incident, whereas at the Tribunal Hearing he said there were no deaths, and that when the Tribunal asked whether he had been admitted to hospital as a result of the claimed injuries, he said he had not been admitted to hospital but that he had been taken to a clinic, treated there, and then returned home, which was significantly inconsistent with his claim before the Delegate where he said he was admitted to and spent two days in the hospital, and those inconsistencies raised concern that he may not be a credible witness: CB 117 at [44];
i)noted the applicant responded by saying he has been frustrated and that the version he gave to the Delegate is the correct version, he then said he was given short notice of the Tribunal Hearing as his email was not working on his phone and that he had been nervous: CB 117 at [44];
j)asked whether the applicant had been the victim of any violence in Australia, to which he replied that he had not, and then referred the applicant to his application for review of the Partner visa refusal decision in which the Migration Review Tribunal found that he made a claim to be the victim of domestic violence, and the applicant responded that he thought the Tribunal’s question was not referring to violence from his wife, and the Tribunal put it to the applicant that it had concerns that he would not refer to violence inflicted on him by his wife when asked whether he had been a victim of any violence, if in fact such violence had occurred: CB 118 at [50];
k)noted it had considered the post Tribunal Hearing submissions in which the applicant submitted a copy of a letter from the Minister confirming the applicant holds a Bridging Visa E and the conditions that apply to that visa included no work, no study, and the requirement to notify any change of address, a copy showing the applicant is in receipt of "SRS" Living Allowance and Rental Assistance Allowance and a one page annotated print from a website with the title "Ethiopia Attacks”: CB 118 at [53];
l)found significant parts of the applicant’s evidence to be vague and inconsistent, and that when this was put to the applicant his explanations were not satisfactory, and that the Tribunal did not accept that any of the applicant’s explanations, including short notice of the hearing, individually or cumulatively, provided an alternative explanation for the inconsistencies and weaknesses that the Tribunal had determined existed in the applicant’s claims: CB 120 at [62]-[63];
m)did not accept that:
i)the applicant was a deacon at the church, or that he held any other senior role in the church, or that he would be viewed as an “organiser of the church opposition to the mosque”: CB 120 at [64];
ii)the firebombing incident at the local church occurred as claimed or that the applicant sustained injuries as a result of that incident: CB 121 at [65]-[66]; and
iii)the applicant would be denied the capacity to earn a livelihood of any kind threatening his capacity to subsist or that he would have no other option but to join the military: CB 121 at [67];
n)was not satisfied there was a real chance the applicant would face serious harm from Muslims, the military, Al Shabaab or anyone else in the reasonably foreseeable future as a result of his religion: CB 121-122 at [68]-[70], or the applicant would suffer serious harm for reasons of his period of absence from Ethiopia, or return as a failed asylum seeker: CB 123 at [75];
o)found that the applicant did not face a real chance of serious harm for a Convention reason: CB 123 at [77], and in light of its consideration of the applicant’s claims under the Convention criterion relied upon its earlier findings in concluding that the applicant did not face a real risk of significant harm under Australia’s complementary protection criterion based upon his claims: CB 123-124 at [80]-[81];
p)carefully considered independent evidence regarding security and violence in Ethiopia generally, and accepted that the level of violence is generally low, although there are areas, such as near disputed border areas, where there may be security threats from terrorist, militant and sectarian groups, however, considered that to the extent that the applicant faces a real risk of significant harm as a civilian victim of generalised violence, it is one faced by the population of the country generally and not faced by him personally: CB 124 at [83]; and
q)affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 124 at [86].
Extension of Time and Proposed Judicial Review Application
The sole ground of the Extension of Time Application is as follows:
I couldn’t get legal help to do the application
The grounds of the Proposed Judicial Review Application (transcribed verbatim) are as follows:
1. maybe the interpreter is wrong transmited to the cour
2. I was giving to the AAT and Immigration department some not match info because I have got to much problem and having to much thinking
3. Generally the AAT Decision was unfair decision and I was to appeal for the Federal Court to review my situation.
On 14 September 2016 a Registrar of this Court made orders (“Registrar’s Orders”) allowing the applicant to file and serve any amended application and supporting affidavits by 14 November 2016 and a written outline of submissions prior to the hearing on 30 May 2018, and including a liberty to apply.
The applicant filed no material in accordance with the Registrar’s Orders, and in particular the applicant failed to provide any affidavit in support of his request for an extension of time in breach of the requirement under r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), prior to 7 May 2018.
On 7 May 2018 the applicant lodged an affidavit sworn 7 May 2018 (“Supplementary Affidavit”) to which he annexed a supporting letter from the Salvation Army and a psychological report. The Court further considers the Supplementary Affidavit below: see [14]-[23]. The Supplementary Affidavit was lodged almost 18 months after the time prescribed in the Registrar’s Orders for the applicant to file any further affidavit.
At hearing the Court explained to the applicant that he was required to satisfy the Court that he ought be granted an extension of time, and to do so must explain the reason for his delay in filing the Proposed Judicial Review Application, address any prejudice the Minister may suffer, and that he establish sufficient merit in the grounds of the Proposed Judicial Review Application to warrant its consideration by the Court. Upon that explanation, the applicant was then invited to make oral submissions, which he did with the assistance of an interpreter, stating that:
a)he had nothing to say about his need for an extension of time: he has been suffering for 4-5 years during this process and he has no place to live and needs the Court to tell him where he will live while he waits for judgment;
b)he gave information to the Tribunal supporting his claim that he suffered a lot, including documentation about his church and dangers in his country, but it wasn’t “transmitted” or “interpreted” because the Tribunal could not have refused the Protection Visa on the evidence he gave;
c)he had suffered in his home country and spent two days in hospital, there have been attacks and “many” people have been killed by the Islamic State which he told to the Tribunal, but the interpreter must not have said this, but if the Court needs documentation he has some verifying this from 2008 and 2014;
d)he cannot return to Ethiopia as people will ask him why he has been absent for so long, and people and organisations are looking for him and will attack him if he returns, and because he is part of the Ethiopian Orthodox Church, the Islamic State will target him; and
e)he seeks the assistance of the Court, having been in Australia for eight years, to grant him a Protection Visa and finish his case “quickly” as he needs protection and is not just seeking to remain here.
Minister’s Submissions
The Minister opposed the applicant being granted an extension of time. The Minister submitted that:
a)a delay of 19 days is not insignificant, particularly where the applicant has failed to file an affidavit explaining the delay and showing why it is necessary, in the interests of the administration of justice, for the Court to grant the extension as is required by r.44.05(2)(c) of the FCC Rules;
b)the Court should not exercise the power to dispense with r.44.05 of the FCC Rules pursuant to r.1.06(1) of the FCC Rules and the application for an extension of time must therefore fail on the basis of that non-compliance;
c)while it is accepted that there is no prejudice to the Minister if the Court were to grant an extension of time, the mere absence of prejudice to a respondent can never, of itself, justify the exercise of the discretion sought by the applicant: Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”), FCR at 349 per Wilcox J;
d)the ground of application for extension of time does not provide a satisfactory explanation for the delay: WZAWB v Minister for Immigration & Anor [2016] FCCA 1345 (“WZAWB”) at [90] per Judge Lucev;
e)the proposed substantive grounds of review have no reasonable prosects of success to justify the grant of an extension of time as:
i)the applicant has failed to provide any evidence to establish that the interpreter misinterpreted his evidence and further how any such misinterpretation could have prevented him from giving evidence or from his evidence being conveyed to the Tribunal;
ii)to the extent that the applicant seeks to explain the reason for having provided inconsistent evidence, the applicant seeks the Court to engage in impermissible merits review, and the final ground resembles a plea based on the applicant’s dissatisfaction with the Tribunal’s finding: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ); and
iii)there is no evidence before the Court, nor is it apparent from the Tribunal Decision, that the Tribunal did not comply with its obligations under Div.4 of Pt.7 of the Migration Act to afford the applicant procedural fairness, as prescribed.
The Minister opposed the Court considering the Supplementary Affidavit on the basis it was material not before the Tribunal and was irrelevant.
With respect to the applicant’s oral submissions the Minister submitted:
a)the applicants oral submissions largely invite the Court to undertake impermissible merits review;
b)to the extent the applicant’s oral submissions adverted to the mis-transmission or non-interpretation of information particularly pertaining to the Ethiopian Orthodox Church attacks the applicant found on the internet there is no evidence the applicant raised that information with the Delegate or the Tribunal;
c)in the Tribunal Decision at CB 121 at [66] the Tribunal rejected the evidence of the local church attack on the basis of the applicant’s inconsistencies in respect of a number of factors, and not just the Tribunal’s inability to find any “reports” verifying the event, in respect of which the Tribunal specifically noted that the absence of reporting was not conclusive that the attacks did not occur, but rather it was relevant to the applicant’s credibility; and
d)the Tribunal did not misconceive the applicant’s claim, nor did it fail to have regard to any evidence in making the findings in the Tribunal Decision, and no jurisdictional error is established by the applicant’s oral submissions.
Supplementary Affidavit
The Supplementary Affidavit filed by the applicant raises two issues:
a)that it was filed out of time pursuant to the Registrar’s Orders, and whether an extension of time ought to be granted in which to file it; and
b)whether the material in the Supplementary Affidavit is material that the Court can consider.
Rule 3.05 of the FCC Rules provides as follows:
(1) The Court may extend or shorten a time fixed by these Rules or by a judgment, decree or order.
(2) A Registrar may extend or shorten a time fixed by these Rules.
(3) The time fixed may be extended even if the time fixed has passed.
(4) A time fixed by these Rules or by a judgment, decree or order for service, filing or amendment of a document may be extended by consent without an order.
The non-exhaustive list of factors the Court will generally take into account in determining whether to grant an extension of time include:
a)the length or extent of delay;
b)the reason for the delay;
c)any prejudice to the opposing party; and
d)the merits of the application.
Hunter Valley Developments, FCR at 348-349 per Wilcox J.
The Supplementary Affidavit does no more than annex a copy of a letter from a caseworker at the Salvation Army where the applicant is residing with a homelessness service provided by the Salvation Army (“Caseworker’s Letter”) dated 3 May 2018, and a psychological report, prepared by a registered psychologist at Psychology Australia dated 4 May 2018 (“Psychologist’s Report”).
The Caseworker’s Letter does no more than set out that the applicant has been provided with board and lodging, engaged in certain case meetings (including sessions with a psychologist), and has been a model resident. It describes the services provided by the Salvation Army to the applicant at a time post the Tribunal Hearing. The Caseworker’s Letter is irrelevant to any issue associated with the assessment of jurisdictional error by this Court in relation to the Tribunal Decision.
The Psychologist’s Report is said to be a report on the psychological services the applicant has received from Psychology Australia whilst resident with the Salvation Army’s homelessness service, the treatment being provided by the Salvation Army as part of that service. The Psychologist’s Report sets out the applicant’s past and present circumstances, but that takes the matter no further than the applicant’s description of his circumstances in largely similar terms to that set out in the Background above: see [3(d)] above. The Psychologist’s Report also sets out an assessment of the applicant’s mental health in which it was found that:
a)the applicant’s presentation was consistent with a mild anxiety condition; and
b)applying a diagnostic tool described as the Refugee Health Screener (“RHS-15”) suggested that:
i)the applicant has no current symptoms associated with traumatic experiences prior to or during migration;
ii)the applicant has moderate symptoms related only to excessive thinking associated with post-migration experiences; and
iii)the applicant’s “mental health appears to be relatively intact”: Psychologist’s Report at page 4.
The Psychologist’s Report post-dates the Tribunal Hearing, and does not support any suggestion that the applicant suffered trauma whilst in Ethiopia, but rather that any anxiety or stress presently suffered is a consequence of the applicant’s concerns arising from having made the Protection Visa application.
The material in the Supplementary Affidavit is irrelevant to the matters before the Court upon judicial review for reasons set out above at [18]-[20], and notably have no discernible connection to the applicant’s Protection Visa application or claims before the Tribunal, save that the Psychologist’s Report suggests that the applicant had no current symptoms associated with traumatic experiences prior to or during migration to Australia, which does not provide any support for the applicant’s case in any event.
It is not open to the Court to admit new evidence or materials from the applicant for the purpose of asking the Court to disagree with a factual conclusion reached by the administrative decision-maker, and fresh evidence is not admissible unless it bears on some jurisdictional error: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145 at [27] per McKerracher J, and the applicant has asserted no reason as to how the Caseworker’s Letter or the Psychologist’s Report bear on some jurisdictional error in the Tribunal Decision, and nor do they admit of any basis for inferring that they bear upon any jurisdictional error in the Tribunal Decision.
It follows from the above that the Supplementary Affidavit is irrelevant, and further does not support the merits of either an extension of time in which to file the Supplementary Affidavit, the Extension of Time Application, or the grounds of the Proposed Judicial Review Application, and in those circumstances time to file the Supplementary Affidavit ought not be extended. Further, the Court notes that no reason for the delay in filing the Supplementary Affidavit has been proffered, and that the length of the delay is considerable, the Supplementary Affidavit being filed one week short of 18 months after the time prescribed in the Registrar’s Orders. In all of the above circumstances, the applicant will be refused an extension of time for the Supplementary Affidavit to be filed, and in any event, leave to file the Supplementary Affidavit would have been refused even if time had been extended because its content is irrelevant, and therefore not admissible: Evidence Act 1995 (Cth), s.56(2).
Extension of Time Application
Under s.477(1) of the Migration Act an application to this Court for judicial review must be made within 35 days of the date of the Tribunal Decision. The Tribunal Decision was made on 30 June 2016, therefore the applicant was required to file his Proposed Judicial Review Application by 4 August 2016. Having not lodged his Proposed Judicial Review Application until 23 August 2016 the applicant is 19 days out of time. The Court may make an order extending the 35 day time limit and accept the Proposed Judicial Review Application if, pursuant to s.477(2) of the Migration Act:
(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 Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
Regard must be had to r.44.05(2) of the FCC Rules which states that:
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought — the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
In Sandan v Minister for Immigration & Border Protection [2015] FCCA 1166; (2015) 296 FLR 48 (“Sandan”) at [26] per Judge Lucev the Court explained the interaction between s.477(2) of the Migration Act and r.44.05(2)(c) of the FCC Rules as follows:
26. The interaction between s.477(2) of the Migration Act and r.44.05(2)(c) of the FCC Rules appears to work in the following manner:
a) if an application for an order to extend time has been made in writing and specifies why the applicant considers that it is necessary in the interests of justice to make that order, and the Court is so satisfied, compliance with the requirement to file an affidavit under r.44.05(2)(c) of the FCC Rules may be dispensed with;
b) any waiver under r.1.06(1) of the FCC Rules of compliance with r.44.05(2)(c) of the FCC Rules requires the Court to do what justice appears to require: Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 at [7] per Kiefel J; provided that there is rational basis upon which the discretion may properly be exercised: SZNPI v Minister for Immigration & Citizenship [2010] FCA 106 at [12] per Flick J, and bearing in mind that caution may be required before too readily departing from the requirements imposed by the FCC Rules: Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30] per North, Flick and Jago JJ and SZTKB v Minister for Immigration & Border Protection [2014] FCA 653 at [14] per Flick J; and
c) the basis for dispensing with compliance in the absence of an affidavit might be established in circumstances where, for example:
i) the relevant facts concerning the extension of time application are the subject of a statement of agreed facts; or
ii) the relevant facts concerning the extension of time application are the subject of other agreements or concessions made at hearing; or
iii) an applicant is given leave to adduce oral evidence in relation to factual material relevant to an extension of time; or
iv) the alleged jurisdictional error is either established (as in SZTDM (No. 2)) or so likely to be successful as to negate the necessity for the Court to deal with factual issues ordinarily required to be determined on an application for an extension of time (for example, issues such as the explanation for the delay and prejudice to the respondent: see the authorities cited at [32] below).
Unless the Court dispenses with compliance with r.44.05(2)(c) of the FCC Rules pursuant to r.1.06 of the FCC Rules, the applicant “must”, that is, is mandatorily required to, provide an affidavit as to the reason for the delay and why it is necessary and in the interests of justice to grant an extension of time: Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104, FCR at 391 per Merkel J, Sandan at [24] and [30] per Judge Lucev.
The non-exhaustive list of factors the Court will generally take into account in determining whether to grant an extension of time are set out in Hunter Valley Developments, FCR at 348-349 per Wilcox J at [16] above, and are applicable to this Court’s consideration of the Extension of Time Application under the Migration Act: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ (“SZTRY”); MZABP v Minister for Immigration & Border Protection & Ors [2015] FCA 1391; (2015) 242 FCR 585 at [41]-[43] per Mortimer J.
In considering the law with respect to delay in making an application, and in particular a judicial review application which seeks prerogative relief of the kind sought under the Migration Act, the Court must have regard to the judgments of the High Court in Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”). The relevant passages in those judgments of the High Court can, for present purposes, be summarised as follows:
a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
c)where a significant period of time has elapsed, and in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority CLR at 553 per McHugh J.
Requirement for an affidavit
The applicant has not provided an affidavit as to the reasons for the delay, and therefore on that basis alone the Court can dismiss the Proposed Judicial Review Application for non-compliance: FCC Rules, rr.13.03A(a) and (d) and 13.03B(a); Sandan at [16]-[30] per Judge Lucev. If the applicant had filed an affidavit one matter that the applicant would have been required to address was whether it was in the interests of the administration of justice to extend time. The interests of the administration of justice are not identical to the interests of justice, importing considerations of management of the matter by the Court: McLachlan v Assistant Minister for Immigration & Border Protection [2018] FCA 109 at [25] per McKerracher J (and the cases from the former Federal Magistrates Court there cited). Management considerations would entail the necessity to consider the caseload in this Court’s Perth Registry, which in late 2017 was described as “extreme”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J. Adding cases to that load which are lodged out of time may not be in the interests of the administration of justice, particularly where it causes other cases to be delayed and requires the use of scarce judicial resources, either from the Perth Registry or other Registries of this Court.
Length of delay
As already stated the applicant lodged his Proposed Judicial Review Application 19 days outside of the prescribed time limit, and at hearing said he had nothing to say in reference to his need for an extension of time. In SZUIU v Minister for Immigration & Border Protection [2015] FCA 791 at [28] per Farrell J the Federal Court said that a delay of 19 days (in relation to an appeal to be lodged within 21 days) was “not an inordinate delay, but it is not short”. The delay is therefore not insignificant, but not one of such significance that were the other factors compelling, an extension of time might not be granted.
Reason for the delay
By virtue of ss.441A(5)(b) and 441C of the Migration Act the Tribunal is deemed to have “given” the Tribunal Decision to the applicant upon transmission of the email to the last provided email address, and the applicant is taken to have received those documents at the end of the day on which they were transmitted. In this case the Tribunal Decision was sent to the last email address provided by the applicant to the Tribunal: see CB 96 (applicant’s contact details provided to Tribunal) and 110-111 (Tribunal Decision sent). Therefore, the applicant received the documents on 30 June 2016.
On the evidence before the Court it appears the applicant did not receive the Tribunal Decision until 8 July 2016. He therefore had 27 days to act prior to the time limit for filing an application for judicial review to this Court expiring but did not do so. In this regard no fault lies with the Tribunal: it was the applicant who failed to advise the Tribunal of his change of email address: see [3(i)] above.
The ground relied upon by the applicant for the delay was that he was unable to “get legal help” to prepare the Proposed Judicial Review Application. The Court notes the applicant did not “get legal help” to fill out the Proposed Judicial Review Application as it is now before the Court, and the applicant has:
a)not provided any evidence of any steps taken to “get legal help”; and
b)provided no evidence as to why he was not able to file the Proposed Judicial Review Application without getting “legal help” prior to the time limit expiring when he has now done so after the time limit has expired.
In any event, it is well established in this Court that in most circumstances legal representation is not a right, and further it is not a sufficient ground for an application or proceeding to be stayed because an applicant does not have legal representation: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68; (2016) 241 FCR 30; (2016) 338 ALR 551 at [51] per Flick, Griffiths and Perry JJ; Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20; (2000) 31 AAR 448 at [27], [32] and [36] per Sackville, Marshall and Lehane JJ. In the Court’s view, an application for an extension of time to lodge proceedings on the basis of “getting legal help” is analogous to seeking a stay of proceedings to “get legal help”.
The applicant’s asserted reason for delay is one that has not been accepted by the Federal Court as a satisfactory reason: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [35] per Wigney J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J. Likewise in this Court: WZAWB at [86]-[90] per Judge Lucev.
Having regard to the factual circumstances and the law the reason given for the delay is not an adequate one, and this factor weighs against the applicant being granted an extension of time.
Prejudice
It was conceded the Minister had suffered no prejudice by the delay. An absence of prejudice to the Minister cannot of itself justify the applicant being granted an extension of time: SZTRY at [6] per Flick, Griffiths and Perry JJ. The absence of prejudice is therefore a neutral factor in assessing the Extension of Time Application.
Merits of Proposed Judicial Review Application
It is not necessary for the applicant to positively establish that the application will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”). The Court need only examine the grounds of review in the Proposed Judicial Review Application and determine if any ground might be arguable, reasonably arguable, or have a reasonable prospect of success: SZTES at [48] per Wigney J. Success in this context is to be measured by reference to the fact that the Tribunal Decision may be liable to be set aside on judicial review where it is found to be affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for protection: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The applicant bears the onus of proof in these proceedings to establish jurisdictional error: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 at [48] per Griffiths, White and Bromwich JJ.
Ground 1
Ground 1 of the Proposed Judicial Review Application suggests, albeit weakly, that the standard of interpretation was inadequate. The applicant was provided an opportunity by the Registrar’s Orders to present any further evidence by way of supporting affidavits relevant to the grounds of review. The applicant has not provided any evidence relevant to this ground, and in particular has not provided a transcript of the Tribunal Hearing.
To amount to jurisdictional error the standard of interpretation at a Tribunal hearing must be so inadequate that it may deprive an applicant of a real and meaningful opportunity to participate in the Tribunal hearing, such that the applicant was prevented from giving evidence and the conclusions formed were material to the outcome of the applicant’s Protection Visa application: SZRMQ v Minister for Immigration & Border Protection & Anor [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 at [78] and [80] per Robertson J; Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231 at [26] per Kenny J.
The Tribunal confirmed that the Tribunal Hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages: CB 114 at [27]. The Court notes that on the applicant’s Protection Visa application he declared he could speak, read and write in the English, Amamric and Tigrinya languages: CB 14 (at Question 13). In the Tribunal Decision the Tribunal detailed at length what had occurred during the Tribunal Hearing, including the questions it put to the applicant and his responses: CB 114-118 at [15]-[53]. On the face of the Tribunal Decision there does not appear to have been any issue or concern raised by the applicant or the Tribunal based on the interpretation at the Tribunal Hearing.
Ground 1 asserts that “maybe” the interpreter did not interpret correctly. In circumstances where the matter has been on foot for over 18 months, and where the applicant has failed to provide any evidence, and only asserts that there “maybe” misinterpretation, it is evident that ground 1 cannot succeed at hearing.
Before the Court the applicant submitted that there had been a “mistransmission” of evidence, based on what the Tribunal had found based on his claims and his explanations at the hearing. Again, there is no evidence before the Court of any misinterpretation or “mistransmission”. The applicant’s apparent incredulity at the Tribunal Decision is no substitute for proof of misinterpretation possibly giving rise to jurisdictional error in the Tribunal Decision.
Without evidence the Court cannot find any jurisdictional error by virtue of an inadequate standard of interpretation in the Tribunal Hearing. The Court therefore considers that ground 1 lacks merit and has no prospect of success at hearing.
Ground 2
Ground 2 seeks to provide a explanation for the inconsistency in the applicant’s information between the Tribunal and the Delegate. This ground establishes or identifies no legal, let alone jurisdictional, error, but rather invites the Court to engage in impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The applicant’s pursuit of this ground evidences a misunderstanding of the nature of judicial review under the Migration Act in this Court.
Ground 2 has no prospect of success at hearing.
Ground 3
Ground 3 asserts that the Tribunal Decision was unfair. Ground 3 provides no basis for a finding of jurisdictional error in the Tribunal Decision. Mere disagreement with the Tribunal’s findings of fact does not support a contention or claim the Tribunal committed a jurisdictional error: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [14] per Jacobson J. An unparticularised assertion that the Tribunal Decision was unfair is also inadequate, and does not establish jurisdictional error in the Tribunal Decision: AYE16 v Minister for Immigration & Anor [2017] FCCA 1424 at [20] per Judge Lucev, affirmed in AYE16v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J; WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; Kumar v Minister for Immigration & Anor [2018] FCCA 678 at [25] per Judge Wilson.
There is nothing in the materials to suggest that the applicant was denied procedural fairness or that the Tribunal failed to comply with any of the requirements of Pt.7 Div.4 of the Migration Act in circumstances where:
a)the applicant attended and gave evidence and presented arguments, and was provided with a real and meaningful opportunity to participate in the Tribunal Hearing process, and that process was not simply a “hollow shell or empty gesture”: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 at [31] per Goldberg J;
b)an interpreter was present at the Tribunal Hearing, and on the evidence before this Court there is no evidence of inadequate interpretation: see [41]-[46] above; and
c)the applicant was made aware the Tribunal found many of his claims not to be credible and his evidence to be inconsistent, and the Tribunal specifically put this to the applicant on a number of occasions and the applicant provided his responses, notwithstanding that the applicant need not have been given notice his credibility was in issue as the Delegate had considered the same credibility issue in relation to his claims lacking detail and documentary evidence: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [35] and [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The Court considers ground 3 is no more than a plea for a different outcome more favourable to the applicant, and is thus a plea for impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and therefore has no prospect of success at hearing.
Oral submissions
In oral submissions the applicant claimed that the Tribunal overlooked evidence or that particular evidence the applicant provided to the Tribunal was not “transmitted”.
The Tribunal is entitled to give whatever weight to the evidence and information before it as it thinks appropriate in the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] per French J. Furthermore, the accuracy of country information and the weight the Tribunal places on country information is also a matter for the Tribunal and not this Court: NAHI v Minister for Immigrations & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ.
The applicant’s submissions at hearing sought to dispute the Tribunal finding that the church firebombing incident occurred, or that there was no information or reports confirming the harm the applicant suffered as a result of the church firebombing. The applicant has misconceived what was said by the Tribunal in this respect, as at CB 121 at [66], the Tribunal stated as follows:
66. The Tribunal accepts that given the passage of time, the applicant might not have been able to recall the precise date of this claimed incident when asked to do so at the hearing. However, it considers his inability to be consistent even in relation to the year (his written claim refers to 2005, whereas at the hearing he referred to 2007) raises serious doubts as to the credibility of his claim. Further, the Tribunal considers that if the incident occurred as claimed, and given his claim that three people were killed, it is more likely than not that some report would have been found on this. However, nothing was found, and while the Tribunal accepts that the absence of reporting is in no way conclusive, it considers it is relevant and weakens the applicant’s claims in this case. Further, having regard to the inconsistencies in the applicant’s claim as to being hospitalised as compared to being treated at a nearby clinic, the Tribunal does not accept that the incident occurred as claimed, or that the applicant sustained the claimed injuries.
The Tribunal did not find that the firebombing had not occurred, rather it rejected that the incident occurred as the applicant had claimed in light of a number of inconsistencies in the applicant’s recollection of events. In the Tribunal Decision at CB 131 at [115]-[116] the Tribunal referred to the background information it had collated on the church the applicant referred to in giving evidence, and indicated that there were no reports of violence at that church from the sources consulted, including international non-government organisations, government produced resources and local news media. The Tribunal Decision also referred at CB 129 at [108]-[111] to information relating to religious groups in Ethiopia.
It cannot be said that the Tribunal did not consider the information or evidence the applicant provided to the Tribunal, or that the Tribunal was unreasonable in forming the conclusions it made. The applicant’s claim of fear as an Ethiopian Orthodox Christian was clearly assessed against the Protection Visa criterion, and any claim the Tribunal misunderstood or misconstrued the applicant’s evidence in respect of this claim, does not give rise to jurisdictional error in the Tribunal Decision: WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [46]-[47] and [58]-[59] per Marshall, Mansfield and Siopis JJ.
The applicant made further comments at hearing about the danger of returning to Ethiopia after so many years, and in particular the threat he says he faces from Islamic State. The Tribunal addressed the circumstances of the applicant being a failed asylum seeker and found that he did not face a real chance of harm returning to Ethiopia as a failed asylum seeker: CB 123 at [75]. In respect of the claims regarding Islamic State, no such claims were made before the Tribunal or Delegate, rather the applicant claimed to fear Al-Shabaab and the Tribunal accepted the existence of Al-Shabaab and the existence of some threat within Ethiopia: CB 122 at [70]. While the Court need not address the claim given that to do so would be to engage in impermissible merits review, had the applicant made a claim regarding Islamic State, the Tribunal’s findings that the applicant was “not a person of any adverse interest to Muslim extremists or to Muslims in general” and the “risk of harm at the hands of the Al Shabaab is no more than the risk faced by the general population in Ethiopia”: CB 122 at [70], any claim regarding the fear of harm by Islamic State on the basis of the applicant’s religious practice can be inferred to have been subsumed into the finding the applicant was not at risk of harm from “Muslim extremists”: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [45] per French, Sackville and Hely JJ.
The applicant’s oral submissions at hearing were largely emphatic pleas for merits review and requests for the Court to grant the applicant a Protection Visa: the former seek impermissible merits review, and the latter a form of the relief this Court has no power to grant: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
No claim made in the oral submissions at hearing gives rise to any arguable jurisdictional error in the Tribunal Decision, and therefore nothing said in those oral submissions enjoys any prospect of success at hearing.
Otherwise
Having read the Tribunal Decision as a whole, and remained vigilant to any possible jurisdictional error which might arise on the face of the Tribunal Decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J, the Court is otherwise satisfied that no jurisdictional error which might have some prospect of success is evident in the Tribunal Decision.
Conclusion and Orders
The Court will make orders reflecting its conclusions that:
a)an extension of time pursuant to r.3.05 of the FCC Rules in which to file the Supplementary Affidavit will be refused; and
b)the applicant’s application pursuant to s.477(2) of the Migration Act for an extension of time in which to file an application pursuant to s.476 of the Migration Act be dismissed. In those circumstances, it is unnecessary to make an order dismissing the Proposed Judicial Review Application: BZABK v Minister for Immigration & Citizenship & Anor [2012] FCA 774; (2012) 205 FCR 83, as it incompetent.
The Court will hear the parties as to costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 16 January 2019
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