CMA15 v Minister for Immigration

[2016] FCCA 798

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMA15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 798

Catchwords:
MIGRATION – Extension of time – substantial delay – protection visa – insufficient merit in proposed substantive application – inadequate explanation for delay – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425(1), 476, 477, 477(1) & (2)

Cases cited:
SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252
SZSEI v Minister for Immigration & Border Protection [2014] FCA 465
WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Pilbara Infrastructure Pty Ltd and Anor v Australian Competition Tribunal and Ors [2011] FCAFC 58

Applicant: CMA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 437 of 2015

Judgment of: Judge Heffernan

Hearing date: 26 February 2016

Date of Last Submission: 26 February 2016

Delivered at: Adelaide

Delivered on: 3 May 2016

REPRESENTATION

The Applicant: In person with an interpreter

Solicitors for the Respondents: Ms C Stokes for the Australian Government Solicitors

ORDERS

1. The application for an extension of time within which to make an application pursuant to s.476 of the Migration Act 1958 (Cth) is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 437 of 2015

CMA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to make an application for judicial review pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’). If successful in his application to extend time, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) which affirmed an earlier decision of a delegate of the Minister which refused to grant the applicant a protection visa. The date of the Tribunal decision is 13 May 2015.

2. The Application was filed out of time. The applicant makes an application for an extension of time pursuant to s.477 of the Act. The grounds identified in support of the application for extension of time are as follows:

   “1.My English level is bare minimal, and I was unaware that there was a time frame to lodge the appeal at the Federal Circuit Court.

   2.I do not know anyone in Adelaide that can help me, and finally I was able to contact someone in Sydney to inform me about the process and to assist me with my forms.

   3.I am currently in an Immigration Detention Centre and my resources here are very limited.”

3. The proposed substantive application identifies the following grounds:

   “1.That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.

   2.More details will be provided by the legal representative.”

4. The proposed grounds of application were not further particularised in writing, however the applicant did make some brief oral submissions before this Court that clarify to some extent the basis upon which he was alleging the Tribunal decision was affected by legal error.  The applicant also made a submission, which I will address below, to the effect that the quality of the interpreting service provided to him during the Tribunal hearing was so deficient as to have deprived him of a fair hearing.

5. The applicant appeared before this Court unrepresented and with the assistance of an interpreter in the Tamil and English languages.  The applicant is a Sri Lankan citizen of Tamil ethnicity and a Hindu.[1]  The applicant relied on the materials contained in the Court Book to support his argument.  He also sought to tender a bundle of further materials.  These were said to be further materials that would assist his claim.  The Minister did not object to the Court receiving those materials subject to issues of relevance and admissibility.  A copy of these materials was not provided to counsel for the Minister.  I will refer to these materials later in these reasons.

   [1]     Court Book (‘CB’) p 201.

Extension of time

1. An application to the Federal Circuit Court for a remedy to be granted in the exercise of the Court’s original jurisdiction under s.476 of the Act with respect to a migration decision must be made within 35 days of the date of that migration decision.[2] The Court has discretion pursuant to s.477(2) to extent that 35 day period as it considers appropriate if:

   “(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”

   [2] Section 477(1) of the Migration Act.

2. As I have noted, this matter proceeded on the basis of an Amended Application.  The original Application was filed on 24 November 2015.  That application also sought an extension of time.  For the purposes of this application, I have treated the date of filing of the original Application as the relevant date for the argument as to extension of time.

3. The applicant was notified of the decision of the Tribunal on 19 May 2015. 

4. The application for an extension of time is opposed by the first respondent.  The application to this Court was made approximately five months out of time.  That is a significant period of delay.  The power of the Court to extend the period of time in which an application can be made is subject to two conditions.  Firstly, a requirement that the application be made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order.  Secondly, that the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.  The applicant has satisfied the first of these requirements.  It is necessary for me to consider whether it is in the interests of the administration of justice to make the order permitting the extension of time.

5. Section 477 of the Act does not stipulate or limit the type of matters of which the Court must be satisfied in considering the question of whether an extension of time is “necessary in the interests of the administration of justice”.  It has been observed that any matters taken into account by the Court must logically and sensibly relate to the interests of the administration of justice.[3]  The Courts have identified a number of matters which might ordinarily be taken into account when considering this issue.  Those factors include:

   a)The reasons for the delay;

   b)The length of the delay;

   c)Whether there is any prejudice to the respondent;

   d)The merits of the proposed application for review; and

   e)The effect on the applicant, if time is not extended.

   [3]     SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252.

Delay

1. I note that the first respondent quite properly concedes that there would be no prejudice to it if time were to be extended.  This is relevant but not determinative.  As I have noted, the length of the delay is significant.  In essence, the applicant points to the difficulty of his circumstances here in Australia.  He has limited English, has been in Immigration Detention, and has little or no support network here in Australia.  I regard these as significant matters.  The applicant informed the Court that he was not happy with the decision made by the Tribunal and that he always intended to apply for a review.  Unfortunately, he did not have money for a lawyer and this, in combination with the circumstances I have identified, caused him to be late filing his application.  The effect of his explanation is that he has no familiarity with the Australian legal system and did not have the resources or the capacity to file his application for review in a timely manner.

2. The first respondent did not dispute that the applicant had obvious problems with English, that he was unfamiliar with the Australian legal system, or that he had limited financial or personal resources.  It simply submits that the combination of those factors do not amount to a satisfactory explanation in all of the circumstances particularly given the length of the delay.

Merits

1. In considering the question of the merits of the substantive application for the purpose of an application to extend time, it is not necessary that the applicant demonstrate that he would ultimately be successful.  What is necessary is that he demonstrates that his application has some reasonable prospect of success.

Problem with interpreter and video facilities

1. The ground of application asserts that the Tribunal fell into legal error.  The only further particularisation of this ground came from the oral submissions of the applicant.  Firstly, the applicant submitted that the interpreter at the Tribunal hearing was an Indian Tamil interpreter and not Sri Lankan Tamil.  The language was “a bit different”, he said, and this meant that he could not understand the interpreter and she could not understand him.  This was exacerbated by the failure of the video connection.  The applicant claimed that video transmission was disturbed a couple of times.  For this reason, he was not certain that the Tribunal was able to understand the effect of his evidence.

2. It is well established that mis-translation and non-translation by an interpreter can give rise to jurisdictional error on the basis of procedural unfairness if it has the effect of depriving the applicant of an opportunity to be heard.[4] Section 425(1) of the Act sets out the duty of the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in the decision under review. An inadvertent failure to provide an adequate interpreting service might amount to a breach of the procedures established to enable an applicant to do so. A fault in a video conference link would fall into the same category if it prevented or substantially interfered with the ability of the applicant to present his case.

   [4]     SZSEI v Minister for Immigration & Border Protection [2014] FCA 465.

3. The fault in interpretation would have to have been with respect to a material matter, in other words, it would need to have been in relation to a matter that had the potential to affect the outcome of proceedings.  Not all mis-translations or non-translations would have the effect of rendering a hearing procedurally unfair in this way.  The principle has been described in this way:

   “To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence ….  Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry.”[5]

   [5]     WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29].

4. There are a number of problems with the applicant’s submission about the interpreter and the video link.  The Tribunal hearing record indicates that the interpreter was a qualified NAATI Level 2 interpreter in “Tamil (Sri Lankan)”.[6]  The applicant was represented at the hearing by a registered migration agent[7] and it does not appear that the agent made any complaint or observation about the quality of the interpreting or ability of the applicant to make himself understood to the interpreter.  To the contrary, the decision record states:

   “… The applicant’s representative was present.  When asked at the commencement of the hearing if there were any limitations in the applicant’s capacity to communicate with the Tribunal or participate in the review, the applicant answered no.”[8]

   [6]     CB p 190.

   [7]     CB pp 190 & 200.

   [8] CB p 201 at [11].

5. I note that the migration agent took an active role in the hearing making detailed submissions.[9]  There is no indication that the migration agent made any complaint about a problem with the quality of, or a disturbance to, the video link. 

   [9] CB p 204 at [23].

6. The Decision Record makes plain that the Tribunal covered the claims in evidence with the applicant in considerable detail.[10]  The substance of all of these claims seems to have been understood and recorded by the Tribunal member. 

   [10]    CB pp 206-2011.

7. Further, there is no evidence before this Court about the deficiencies complained of.  No copy of the transcript of the Tribunal hearing has been put before the Court, and no alternative translation has been provided indicating errors or non-translations. 

8. The applicant himself did not identify any aspect of his evidence that he says that he had difficulty communicating to the interpreter.  He has not identified any aspect of the decision record that he says is in error and for that reason must logically be based on a mis-translation or non-translation.  He has not identified any part of his claims that were not referred to by the Tribunal. 

9. I am not satisfied that a contention that jurisdictional error has occurred because of procedural unfairness based on the claimed difficulty with the interpreter, or the video link, has merit.  Putting that in another way, I am not satisfied that such a ground has a reasonable prospect of success.

Request for merits review

1. The applicant submitted that the Tribunal was in error because on his return to Sri Lanka he would be caught by the Army.  He submitted that the Army and the CID both have his photographs.  He was not happy to return home because he claimed that he would be killed.  As the first respondent submitted, this was clearly a request by the applicant for this Court to reconsider the merits of the claims he had already made to the Tribunal.  A merits review is not permissible in an application for judicial review.[11]  It is not for this Court to substitute its own view of the facts for that of the Tribunal.  Further, a fair reading of the decision record suggests that the Tribunal appears to have addressed all of the claims made by the applicant.  I make that observation because at its very widest, the written ground identified in the Application, taken in conjunction with his oral submissions, possibly raises a general complaint that the Tribunal failed to take into account one of his claims or an integer of one of his claims.  As such, the applicant may suggest the Tribunal erred by failing to take into account a relevant matter.  But this is not remotely apparent on a fair reading of the Tribunal decision record.  I remind myself that when considering the merits of a claim for the purpose of an application to extend time, I do not need to be satisfied that the argument has been made out.  I am not satisfied that the ground identified has merit in the sense that I am not satisfied that it has a reasonable prospect of success.

   [11]    NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]; Pilbara Infrastructure Pty Ltd and Anor v Australian Competition Tribunal and Ors [2011] FCAFC 58 at [16].

Further materials

1. I turn briefly to the materials tendered by the applicant during the course of the hearing.  I have already noted the Minister’s attitude towards me receiving these documents.  The applicant provided the Court with an envelope containing documents that he asked be considered on his application.  I have considered these documents.  They consist of:

   a)Copies of a series of emails sent this year detailing the applicant’s unsuccessful attempts to obtain legal representation.  They obviously post-date the filing of his application to this Court.  For that reason, they do not assist in explaining the length of the delay in filing the application;

   b)Two pages of what appears to be a copy of a news item printed from the internet and I assume, written in Tamil.  The article dates from January of this year;

   c)Copies of two printed news articles from the Tamil Guardian, dated 18 November 2015 and 28 July 2015 respectively; and

   d)Copies of the Court documents filed in this matter.

2. None of these materials assists the applicant in his submission that there should be an extension of time.  They do not explain the length of delay.  The news articles could not assist in establishing the merits of his claim because they came into existence only after the Tribunal hearing.  It cannot be argued that the Tribunal fell into error by failing to consider documents or materials that did not exist at the relevant time.  I find that the documents identified at (a)-(c) above are not relevant on the application to extend time.  The additional copies of documents already on the Court file take the matter no further.

Consideration

1. I have taken into account that the impact on the applicant of refusing to grant an extension of time, would be significant.  I am not satisfied, even accepting the problems he has with the English language, his lack of familiarity with the Australian legal system, his lack of finances and having been in Immigration Detention, that he has provided an adequate explanation for the delay of five months in filing his application.  I am not satisfied that the substantive application has merit, in the sense of having a reasonable prospect of success.  Taking into account the interests of the applicant, the interests of the community in having certainty and finality in administrative decision making, the lengthy period of delay, and my assessment of the merits of the application, I have asked myself whether there would be any practical injustice caused by refusing to allow an extension of time in this matter.  I am not satisfied that there would be.  Considering all of those matters, I am not satisfied that it is in the interests of the administration of justice to make the order sought.  I decline to do so. 

2. I dismiss the application for an extension of time. 

3. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  3 May 2016