CLK22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 152
Federal Circuit and Family Court of Australia
(DIVISION 2)
CLK22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 152
File number(s): MLG 1689 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 3 March 2023 Catchwords: MIGRATION LAW – application for extension of time – decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where application for judicial review was filed over 1000 days out of time – consideration of whether it is in the interests of the administration of justice to extend time – finding that delay was extreme, there was no credible reasons for the delay and substantive application lacks sufficient merit to warrant extension of time – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), s 477 Cases cited: Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2022) 403 ALR 604
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submission/s: 16 November 2022 Date of hearing: 16 November 2022 Place: Melbourne Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr A Cunynghame Solicitor for the First Respondent: Sparke Helmore ORDERS
MLG 1689 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CLK22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
3 March 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The applicant’s application for extension of time filed 18 July 2022 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the sum of $4,189.38.
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
DEPUTY CHIEF JUDGE MERCURI:
Introduction
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 3 July 2019 affirming a decision made by the delegate of the first respondent, the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’), not to grant the applicant a permanent protection visa (Class XA) visa (subclass 866) (‘protection visa’). As the application was not filed in this court until 18 July 2022, the applicant seeks an extension of time in which to do so pursuant to section 477(2) of the Migration Act 1958 (Cth) (‘the Act’).
Background
The applicant is a citizen of Liberia.
Application for refugee visa on 7 December 2016
On 18 April 2007, the applicant arrived in Australia on a Refugee (subclass 200) visa (‘refugee visa’).[1]
[1] Court book at page 62.
On 7 December 2016, that visa was cancelled on character related grounds. Shortly thereafter, the applicant was transferred to immigration detention.[2]
[2] Court book at page 62.
On 1 August 2018, the cancellation decision was not revoked,[3] and on 23 October 2018, the Tribunal affirmed the revocation of the refugee visa.[4]
[3] Court book at page 62.
[4] Court book at page 62.
Judicial review proceedings were subsequently initiated in the Federal Court in relation to a review of the delegate’s decision of 7 December 2016 to cancel the applicant’s refugee visa. On 10 July 2019, Justice Anastassiou of the Federal Court made orders by consent quashing the Tribunal’s decision of 23 October 2018 and issuing a writ of mandamus directing the Tribunal to reconsider the applicant’s refugee visa application according to law.[5]
[5] Supplementary court book at page 1.
Consequently, the matter was reheard by the Tribunal which, on 29 September 2020, once again affirmed the delegate’s decision regarding the visa cancellation.[6]
[6] Supplementary court book at pages 3 to 42.
On 4 November 2020, the applicant sought judicial review of the Tribunal’s 29 September 2020 decision,[7] and on 21 March 2022, Justice Banks-Smith of the Federal Court dismissed that judicial review application.[8] There is no evidence before the court that the applicant has sought to appeal the decision of Justice Banks-Smith.
[7] Supplementary court book at page 45 and following.
[8] Supplementary court book at page 55.
Application for protection visa on 4 December 2018
On 4 December 2018, the applicant applied for a protection visa.[9]
[9]Court book at page 8 and following.
On 9 January 2019, the applicant attended a protection visa interview with the Department of Home Affairs.[10] Ultimately, on 29 April 2019, a delegate of the Minister concluded that the applicant did not satisfy the requirements for a protection visa, nor was the delegate satisfied that the applicant’s circumstances engaged Australia’s complementary protection obligations.[11]
[10]Court book at page 64.
[11]Court book at pages 58 to 77.
Application for review at Tribunal on 30 April 2019
On 30 April 2019, the applicant lodged a review application with the Tribunal.[12]
[12]Court book at pages 79 to 84.
On 22 May 2019, the applicant sent various documents to the Tribunal in support of his review application.[13] On 23 May 2019, the applicant sent further documents to the Tribunal in support of his ‘immigration case’.[14]
[13]Court book at pages 91 to 154.
[14] Court book at page 155.
On 7 June 2019, the applicant was invited to a hearing before the Tribunal to give evidence and present arguments, to be held on 1 July 2019.[15]
[15] Court book at page 157.
On 11 June 2019, the applicant again sent further material to the Tribunal with the subject line, ‘Risk of me going back to Liberia’.[16] On 12 June 2019, the applicant sent further documentation to the Tribunal in support of his visa application.[17]
[16] Court book at pages 161 to 165.
[17] Court book at page 166.
On 12 June 2019, the Tribunal sent an email to the applicant indicating that two documents provided by him could not be opened and requesting that he resend them in a different format.[18] The applicant replied by email dated 15 June 2019.[19]
[18] Court book at page 203.
[19] Court book at page 204.
On 18 June 2019, the applicant forwarded further information in support of his application to the Tribunal.[20]
[20] Court book at page 205.
The applicant ultimately attended a hearing before the Tribunal on 1 July 2019. The hearing record indicates that the applicant participated, as did two nominated witnesses.[21]
[21] Court book at pages 210 to 212.
On 3 July 2019, the Tribunal handed down its decision by which it affirmed the decision under review.[22]
[22] Court book at page 214.
Tribunal decision
The Tribunal’s reasons for its decision of 3 July 2019 are set out at pages 215 to 234 of the court book.
After setting out the context to the review application and the relevant criteria of a protection visa, the Tribunal set out the background to this matter at paragraphs [10] to [21]. It then summarised the applicant’s claims at paragraphs [22] to [32]. The Tribunal then set out the evidence, both that before it and that before the delegate at first instance.
Relevantly at paragraph [42], the Tribunal noted that the applicant attended a hearing before it on his own without representation and that ‘the hearing proceeded in the English language’.
At paragraphs [42] to [89], the Tribunal then set out a summary of what occurred at the applicant’s hearing, including a summary of the applicant’s responses to issues raised with him by the Tribunal. At paragraphs [90] to [129], the Tribunal then turned to assess the applicant’s claims and evidence, before setting out its findings at paragraph [130] and following.
Relevantly, the Tribunal found at paragraph [136] that it was satisfied that the applicant did not:
136.… have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Liberia.
At paragraph [137], the Tribunal went on to consider the applicant’s claims cumulatively and found that he did not satisfy the criterion in section 36(2)(a) of the Act.
Similarly, the Tribunal went on to consider whether the applicant engaged Australia’s complementary protection obligations at paragraphs [138] to [146] and concluded at paragraph [147] that he did not. The Tribunal therefore affirmed the delegate’s decision.[23]
[23] Tribunal decision record dated 3 July 2019 at paragraph [153].
Submissions made to the Tribunal post-decision
The applicant continued to provide material to the Tribunal after the decision was made.[24] On 13 March 2020 an email was sent to the applicant by the Tribunal which stated:
We received three submissions on 12 March 2020.
We made our decision in this case on 3 July 2019. Once we have made a decision under the Migration Act 1958, we have no power to take any further action on the review.
We are not in a position to assist you any further on this issue.[25]
[24] Court book at pages 235 to 246.
[25] Court book at page 248.
Proceedings in this court
As stated above, on 18 July 2022, the applicant filed his originating application for judicial review of the Tribunal’s decision of 3 July 2019, along with supporting affidavits and statements. The application was filed over 1000 days outside of the statutory time frame of 35 days, with the applicant applying for an extension of time pursuant to s 477(2) of the Act.
Despite orders made on 1 August 2022 and 17 August 2022, which allowed the applicant to file an amended initiating application and written submissions, he has not done so.
Extension of time application
In support of the extension of time application, the applicant relies upon an affidavit and a statutory declaration both filed on 18 July 2022.
In the statutory declaration, the applicant sets out the reasons for the delay in filing the judicial review application. In essence, the applicant states that he was unable to file his application within the specified time frame, namely before 7 August 2019, because:
(a)he has been in detention since 2017, and at the time of the Tribunal’s decision in July 2019, he was in detention on Christmas Island;
(b)he says that he was unaware of the decision at the time, that he had no access to the internet, email or a lawyer to explain the decision and that he was unable to read;
(c)further, that once internet service was restored on Christmas Island he emailed his lawyer requesting his court documents which he received on or about 29 September 2020;
(d)he says that he was not able to read or understand these documents without the assistance of his lawyer and it was not until early 2021, when he was contacted by his lawyer who informed him of the Tribunal’s decision, that he became aware of the Tribunal’s decision;
(e)his then lawyer then said he was unable to assist with lodging a judicial review application and because of the restrictions imposed by COVID-19, he was unable to obtain legal representation until late 2022 when he visited the Asylum Seeker Resource Centre’s (‘ASRC’) website and requested assistance; and
(f)he was contacted by the ASRC on 24 June 2022 and was booked into an appointment with them in early to mid-July, being the next available appointment.[26]
[26] Applicant’s Statutory Declaration filed on 18 July 2022 at paragraph [5].
The applicant further asserts that there is no prejudice to the respondents by the court granting an extension of time, but the impact on the applicant weighs in favour of such an extension being granted. The applicant therefore asserts that it is in the interests of justice for an extension of time to be granted.[27]
[27] See Originating Application filed on 18 July 2022.
The principles which apply to an extension of time application are well settled. In essence, the court must consider whether it is in the interests of the administration of justice for the extension to be granted. In determining this issue, the court would need to consider:
(a)the length of the delay;
(b)the explanation for the delay;
(c)any prejudice to the respondent if an extension were granted; and
(d)the merits of the grounds of review.[28]
[28] SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46]-[48].
It is now also well settled that in considering the merits of the grounds of review, it is not necessary at the stage of considering whether to extend time to limit one’s assessment of the merits to an impressionistic one.[29]
[29] Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2022) 403 ALR 604 at [19].
In this case, for the following reasons, I find that it is not in the interests of justice to grant the extension of time sought.
Length and explanation for delay
In the context where the Act provides that a judicial review application ought be filed within 35 days, the delay of over 1000 days in filing these proceedings is extreme, with this delay itself weighing heavily in favour of refusing the extension of time application.
In addition, the reason for the delay in this case is not plausible. As outlined above, it is said for the applicant that the reason for his delay in filing this application for judicial review was a combination of the fact that:
(a)he was in detention at the time of the decision;
(b)he did not have consistent access to the internet; and
(c)this limited both his ability to obtain legal assistance and also his capacity to understand the decision itself.[30]
[30] Applicant’s Statutory Declaration filed on 18 July 2022 at paragraph [5].
Moreover, as stated, it is said for the applicant that it was only in 2021 that he finally was able to obtain legal assistance to help him with this case.
I do not accept these arguments for the following reasons. Whilst the applicant was in detention throughout the Tribunal’s consideration of this matter, it is evident from the court book that the applicant had access to the internet and to his computer throughout 2019 and in early 2020. The applicant emailed various documents in support of various proceedings before the Tribunal and he clearly received documentation from the Tribunal, again via email, throughout this period. So much is evident from his responses to that correspondence.
Moreover, it is clear from pages 235 to 246 of the court book that, after the Tribunal’s decision was handed down on 3 July 2019, the applicant continued to provide information to the Tribunal by email from detention. As noted above, on 13 March 2020, the Tribunal advised the applicant that as it had made a decision in this matter on 3 July 2019, it could no longer consider his claims. There is no explanation given by the applicant as to why he did not immediately file an application after receiving this communication in March 2020, even if one were to accept, that he was unaware of the 3 July 2019 decision until this time.
It is also clear from the supplementary court book, and as summarised above, that the applicant was involved in ongoing litigation in the Federal Court and in the Tribunal between 2019 and 2022 in relation to the decision not to revoke the cancellation of his visa.
I therefore find that the applicant has not provided a plausible explanation as to the reasons for the delay in filing this application.
Prejudice to the Minister
The Minister concedes that there is no specific prejudice to him if an extension of time were granted, although the Minister does point to the fact that there is a public interest in the finality of administrative decision-making.[31] The time limit of 35 days for such applications is there for a reason and ought not be extended except where the administration of justice demands it.
[31] Minister’s Outline of Submissions filed on 2 November 2022 at paragraph [37].
Merits of grounds in substantive application
In addition, I find that the substantive grounds of review lack sufficient merit to warrant an extension of time in the present circumstances. Accordingly, I find that it is not in the interests of justice to grant the extension of time sought.
The applicant effectively raises one ground of review. Ground 2, so-called, is simply a statement that the applicant has sought legal aid assistance and does not raise any alleged jurisdictional error.
Ground 1
By ground 1, the applicant asserts that the Tribunal failed to consider an integer of his claims. He states that this was ‘a fact so critical to the understanding of the Applicant’s personal circumstances and to the Second Respondent’s decision that it amounts to a jurisdictional error’.[32]
[32] Originating Application filed on 18 July 2022.
The particulars to that ground then further state:
(a)At paragraph 118, the Second Respondent erroneously concluded that the Applicant’s parents could have only been killed by Charles Taylor, Prince Johnson or General Butt-Naked during civil war discourse;
(b)At paragraph 120, the Second Respondent failed to acknowledge that the Applicant’s parents could have been killed by a person or persons unrelated to the civil war in Liberia;
(c)At paragraph 121, the Second Respondent accepted that the Applicant does not know who killed his parents or if those people are still alive and living in Liberia; ánd
(d) The Second Respondent’s failure to consider that a different person or person may have killed the Applicant’s parents and that he has a real risk of harm from them resulted in an error in the application of s36 of the Migration Act and proper consideration of Australia’s protection obligations.
To the extent that ground 1 asserts that the Tribunal erred by concluding that the applicant’s parents could only have been killed by Charles Taylor, Prince Johnson or General Butt-Naked during the course of the civil war and that the Tribunal failed to consider that the applicant’s parents could have been killed by other persons unrelated to the war; it is misconceived.
This is not what the Tribunal found. At paragraph [117], the Tribunal records in its reasons the applicant’s concerns to be at risk of being killed by the people or groups who killed his parents. In this context, the Tribunal goes on to say:
117.… He claims that it could have been Prince Johnson, General Butt-Naked or Charles Taylor or someone else who killed his parents. (emphasis added)
It is clear from this statement that the Tribunal understood that the applicant did not expressly claim that one of these individuals killed his parents and that it may have been another person. It is in this context that the Tribunal’s further comments at paragraph [118] must be read.
In any event, the Tribunal noted at paragraph [117] that the applicant claimed to fear that he would be killed on his return because he had the same surname as his parents. The Tribunal then dealt with this at paragraph [119] by stating:
119.Given that Liberia was gripped by civil war at the time the applicant’s parents were killed, the Tribunal is of the view that there is little or no chance that any individual could or would recall or be concerned about their criminal responsibility for killing the applicant’s parents, such that, 19 years later, they, or others acting on their instruction, would want to kidnap, torture or kill the applicant.
It is apparent from these comments and the further statement at paragraph [120] that the Tribunal did not conclude that the applicant’s parents could only have been killed by Charles Taylor, Prince Johnson or General Butt-Naked.
The findings made by the Tribunal were reasonably open on the evidence and ground 1 simply invites the court to engage in impermissible merits review.
Ground 1 therefore does not disclose any jurisdictional error.
Ground 2
As stated above, ground 2 also does not identify any jurisdictional error.
Conclusion
As such, the applicant’s application has not been made out and I order that it be dismissed with costs to be fixed if not agreed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 3 March 2023
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