CMW21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 90

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CMW21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 90

File number(s):	MLG 1894 of 2021
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	18 February 2022
Catchwords:	MIGRATION – Application for extension of time pursuant to section 477 of the Migration Act 1958 (Cth) – applicant seeking further time for judicial review of a decision of the Immigration Assessment Authority – Safe Haven Enterprise (Class XE) (subclass 790) visa – whether the application for judicial review should be extended – no proper explanation as to delay – absence of prejudice to the Minister – grounds without merit – application dismissed with costs.
Legislation:	Migration Act 1958 (Cth), ss.473, 473DB, 473DC, 473DF, 477
Cases cited	BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023 DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246 MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Division:	Division 2 General Federal Law
Number of paragraphs:	64
Date of last submission/s:	25 January 2022
Date of hearing:	25 January 2022
Place:	Melbourne
Solicitor for the Applicant:	The applicant appearing on his own behalf
Solicitor for the Respondent:	Mr Galvin

ORDERS

MLG 1894 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CMW21
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	18 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The applicant’s application for an extension of time be dismissed.

2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.

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:

1. This is an application for an extension of time pursuant to section 477 of the MigrationAct 1958 (Cth) (‘the Act’) by which the applicant seeks further time to apply for judicial review of a decision made by the Immigration Assessment Authority (‘Authority’) on 3 July 2018. In that decision, the Authority affirmed a decision of a delegate of the first respondent not to grant the applicant a Safe Haven Enterprise (Class XE) (subclass 790) visa (‘SHEV’).

2. For the following reasons I find that the extension of time sought ought not to be granted and consequently the applicant’s application ought to be dismissed.

   BACKGROUND

3. The applicant is an Iranian citizen who arrived in Australia by boat.  In his Case Assessment and Biodata Interview, a record of which is dated 18 March 2013,[1] the applicant, in response to a question as to why he left Iran, said:

   There was no freedom no democracy.

   [1] Court book pages 19 to 24.

4. In response to a further question as to whether there was anything in particular which happened to him, the applicant said:

   Continuous kinda of chasing – when I was out with my sister by the Basji and detained.

5. In response to a question as to whether he had been detained, arrested or charged, the applicant further stated:

   No.  Only detained for a short time – 1 hour because I was with my sister.  1 year ago.

6. In the applicant’s Irregular Maritime Arrival interview dated 4 April 2013,[2] the applicant provided the following answers in response to a question as to why he left Iran:

   It wasn’t easy to live there, there is no freedom.  You would be harassed for different reasons, how you dressed, how you cut your hair.

   [2] Court book pages 29 to 43.

7. The applicant also said:

   We were always under pressure and no one listen to us.

   … if you wanted to have a girlfriend they would say, no you can’t go out.

   Always you were under pressure and the conditions wouldn’t let you live in peace.  And it was difficult to study.

8. The applicant repeated his claim to have been arrested once when out with his sister, said they were questioned for half an hour and then the police called their parents to pick them up.

9. When asked what he thought would happen to him if he returned to Iran, the applicant said he thought he would be sent to jail.  When asked why, the applicant said ‘they might say that I left the country illegally.  They would ask why I left illegally to go to Australia’.[3]

   [3] Court book page 43.

   SHEV application filed on 9 November 2016

10. The applicant appointed a migration agent to act on his behalf, who filed an application for a SHEV.[4]  This application included a statement of claim in which the applicant relevantly said that the statement contained only a summary of his claims and that he would provide further information during his interview with the Department of Immigration and Border Protection officer.  In relation to why he left Iran, the applicant said:

    [4]      I left Iran because I had to hide my natural sexual feelings.  …

    [5]When I turned 18, I began to feel attracted to the same gender but could not reveal this as there was a huge resistance toward same sex relationships in Iran.

    [6]It was very difficult in Iran to start relationships so in all those years I had to stay single although I had short term relationships specifically during the last year of my residence in Iran.

    [7]In 2013, I decided to leave Iran, because I could not hide my normal biological tendency for all my life.  I thought a lot and could predict all the difficulties ahead but finally decided to put a plan into action.  I did not want to hide myself all my life.

    [8]In March 2013, I came to Australia.  In Australia I had the chance to freely choose the personal relationships I wanted and I am very satisfied with my decision.[5]

    [4] Court book pages 52 to 109.

    [5] Court book page 95.

11. As to why the applicant feared returning to Iran, he said:

    [10]     I do believe that if I return to Iran,

    a.    I cannot live freely in Iran as a gay

    b.   I have to hide my natural sexual choice

    c.    I cannot have a partner as a gay

    d.   I have to suffer from the discriminations as a gay imposed by the government and people in Iran

    e.    I will be humiliated and looked upon with disfavour if I speak about my natural preference.[6]

    [6] Court book page 96.

12. By letter dated 7 June 2017, the applicant was invited to attend an interview, scheduled for 21 June 2017.[7]  On the day of the scheduled interview, the applicant’s representative advised the Department that the applicant was unable to attend due to a medical issue.[8]  The applicant provided a text message in this regard which is set out in full at page 134 of the court book.

    [7] Court book page 118.

    [8] Court book page 133.

13. The Department rescheduled the interview for Monday 17 July 2017 and a further invitation to attend was sent to the applicant and his representative.[9]  The applicant did not attend the rescheduled interview.

    [9] Court book pages 135 to 139.

14. It is noted in correspondence between the Department and the applicant’s representative that the Department sought a response from the applicant regarding various issues of concern.[10]  The correspondence from the applicant’s representative suggests that he had had significant difficulty in making contact with the applicant.  Ultimately, the applicant provided a response to a number of issues raised by the Department.[11]  The applicant’s representative also provided information which the applicant said supported his claims of homosexuality.

    [10] Court book pages 140 to 147.

    [11] Court book page 146.

    Refusal of SHEV application by delegate on 15 September 2017

15. By letter dated 15 September 2017, the Department notified the applicant of its decision to refuse his application for a SHEV.[12]  This letter was sent to the address provided by the applicant as his home address.

    [12] Court book page 148.

16. On 19 September 2017, the applicant’s representative again contacted the Department and advised that he had spoken to the applicant who advised that he had changed his home address although he did not provide the representative with an updated address.  The applicant’s representative further advised that he had told the applicant that he was no longer representing him and that he needed either to appoint another representative or act on his own behalf.  The representative further stated that he had requested an updated email address, that the applicant had indicated that he would provide one by text, but did not do so.[13]

    [13] Court book pages 163 to 164.

17. Notwithstanding, there is no evidence that the applicant updated the Department records with his current contact details.

    Referral to the Authority on 21 September 2017

18. The applicant’s application was referred to the Authority as required by the Act. In the absence of any notification from the applicant of an updated email or postal address, the referral to the Authority and associated information was provided to the applicant by letter dated 21 September 2017.[14]  That correspondence, like the initial correspondence sent to the applicant upon receipt of his SHEV application, made it clear that he had an obligation to keep the Department informed of any changes to his contact details.

    [14] Court book page 171.

19. Relevantly, the Department also sent to the applicant an information sheet which set out in detail the Authority’s role and the applicant’s rights to make further submissions.  In particular, it makes it clear that the applicant can make further submissions to the Authority explaining why the applicant believes the Department’s decision is wrong and any claim or matter presented to the Department which was not considered.[15]

    [15] Court book page 174.

20. It appears from the court book that the applicant did not engage in the process before the Authority.  There were no submissions or correspondence made by or on behalf of the applicant.

    Refusal of SHEV application by the Authority on 3 July 2018

21. On 3 July 2018, the Authority made its decision to affirm the delegate’s decision to refuse the applicant a SHEV.  The Authority’s reasons are set out at pages 192 to 198 of the court book.

    Extension of time application filed on 3 August 2021

22. This application for an extension of time was filed by the applicant on 3 August 2021.

23. Section 477(1) of the Migration Act provides that an application for review of a decision of the Authority must be made within 35 days of the date of that decision.  That means that, absent a decision to extend time, a judicial review application from the Authority’s decision ought to have been made by 7 August 2018.  This application is therefore almost three years out of time.

24. This court has the power to extend the 35 day time limit where it is satisfied that it is necessary in the interests of the administration of justice to do so.  There are no statutorily prescribed factors which need to be considered in determining whether or not to exercise the court’s discretion, although the following factors are relevant:

    (a)the length of the delay and the explanation for such delay;

    (b)any prejudice to the Minister of granting an extension of time; and

    (c)whether there is merit to any of the grounds of review raised by the applicant.

25. As stated, the applicant had 35 days from the making of the Authority’s decision to seek judicial review of that decision in this court.  Instead, the applicant’s application was filed almost three years after that time limit had expired.

26. In support of his application for an extension of time, the applicant has filed an affidavit in which he seeks to explain the delay in filing his application.[16]  Relevantly, he acknowledges that he was initially assisted by a migration agent in relation to his application for a SHEV.  He says that in June 2018, he was incarcerated for about four months and was not contacted in relation to the Authority’s decision.  He says that on his release from prison he was placed in immigration detention.  Relevantly the applicant says:

    At this point, I assumed that my IAA decision was rejected as I was taken to detention instead of released into the community.[17]

    [16] Applicant’s affidavit sworn on 28 July 2021 and filed on 3 August 2021.

    [17] Court book page 9.

27. The applicant then says that when he was placed in immigration detention he contacted his former migration agent and was told that he could no longer assist the applicant.  Relevantly, the applicant states that his former migration agent told him that he should get in contact with another lawyer.  The applicant says that his former migration agent did not discuss the Authority decision with him at that time.

28. The applicant was then again incarcerated after about one month in detention for a further three month period and then again released into detention.  The applicant says that he had no money and therefore could not pay for private legal representation.

29. The applicant says that some three weeks prior to filing his application he was given the contact details for a barrister by another detainee.  That barrister then put the applicant into contact with the Refugee Advice and Casework Service who assisted the applicant to lodge the application for review.  The applicant says that he had not appreciated that there were time limits within which an application for review could be lodged.  The applicant then details the steps he took after being advised of the Authority decision to progress his application to this court.

30. It is apparent from the applicant’s affidavit that he took no steps to keep the Department informed of his current contact details.  Moreover, the applicant provides no explanation for what action, if any, he took in the period following his first period of immigration detention, which on his evidence would have been in or about October 2018, when he says that he had assumed that the Authority had rejected his application for a SHEV.  The applicant also does not provide any explanation for what action he took in about June or July 2021, when he sought further assistance to lodge an application in this court.  The highest that the applicant’s evidence goes on this point is that he was unaware of time limits.

31. The applicant appeared on his own behalf before me, assisted by an interpreter.

    CONSIDERATION

    Length and explanation for delay

32. In this case, the delay is significant.  Moreover, the explanation given by the applicant is not persuasive.  The applicant initially had a migration agent assisting him with his application.  The applicant was at various times made aware in correspondence from the Department of the need for him to keep the Department informed of his current contact details.  This seems to have further been conveyed to the applicant by his former migration agent at or about the time of the delegate’s decision in September 2017.  The applicant offers no explanation as to why he failed to keep the Department informed of his contact details at this time and on his own evidence, he was in the community and not incarcerated or in detention at this time.

33. In any event, it is clear from the applicant’s own evidence that he was aware or at least had assumed that the Authority had decided against him by October 2018.  There is no explanation as to what, if any, action he took at that time to seek judicial review of his application.  Whilst an application at that time would also have been outside the prescribed time limit, it would have represented a significantly less delay than that currently being contemplated.

34. The delay and the lack of a proper explanation as to that delay are factors which weigh against the granting of an extension in this case.

35. Time limits are included in legislation for a reason.  The proper administration of justice requires that parties who seek a remedy before the courts do so in a timely manner.  Of course, and perhaps particularly in the case of asylum seekers, including those who find themselves in immigration detention, there may be reasonable explanations for a delay which warrants the courts exercising their discretion to extend the time.  However, in circumstances where there has been a delay of almost three years, the explanation offered would need to be significant. In this case, there is little, if any, explanation offered to explain the applicant’s delay in prosecuting this matter.

    Prejudice to the Minister

36. The Minister conceded that there is no real prejudice to him if an extension of time were granted other than the costs associated with responding to the application.  However, the absence of prejudice to the Minister in this particular matter is not, without more, sufficient to justify the granting of an extension of time.[18]

    [18] BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023 at [18].

    Merits to the grounds of review

37. A significant factor in determining whether to grant an extension of time is whether there is any merit to the proposed grounds of review.  It is well settled that in considering the merits, the court is required to adopt no more than an ‘impressionistic’ assessment of the proposed grounds of review.   It is submitted for the Minister that it will seldom, if ever, be in the interests of the administration of justice for leave to be granted to proceed out of time where the application has little if any prospects of success.[19]

    [19] DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246 at [79]; MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62].

38. It is submitted for the Minister that applying an ‘impressionistic assessment’ in this case, the applicant’s grounds are without merit.

    GROUNDS OF REVIEW

    Ground 1

39. In relation to ground 1, the applicant effectively asserts that the Authority acted unreasonably in failing to invite the applicant to an interview.  It is common ground that the applicant was invited to two interviews before the delegate and failed to attend either of them.  It is also common ground that having not attended the second scheduled interview before the delegate on 17 July 2017, the delegate sought a response to adverse information from the applicant in writing.  The applicant responded to that request and addressed some, but not all, of the matters raised by the delegate.

40. Part 7AA of the Act provides for a ‘fast track’ review process. It provides a limited form of review for certain decisions.

41. Relevantly section 473DB of the Act provides that subject to Part 7AA, the Authority:

    (1)… must review a fast track reviewable decision … by considering the review material provided to the Authority under section 473CB:

    (a)       …

    (b)       without interviewing the referred applicant.

42. Whilst the Authority ‘may’ seek and obtain information which was not before the delegate, it is not required to do so, whether requested by the applicant or otherwise.[20]

    [20] See Migration Act 1958 (Cth) s 473DC.

43. Section 473DF of the Act then goes on to provide a process which is to apply if the Authority determined that it was appropriate to seek such new information, including by inviting the applicant to attend an interview. When these provisions are considered in their entirety, it is clear that there is no obligation on the Authority to invite the applicant for an interview.

1. In this particular case, the Authority considered whether it was necessary to invite the applicant to attend an interview before it.  It is clear from the Authority’s reasons that the Authority had regard to:

   (a)the history of the matter before the delegate and in particular the failure by the applicant to attend either interview before the delegate;

   (b)the fact that the applicant provided no supporting medical documentation to support his absence due to alleged illness from the first interview and his failure to provide any explanation for his failure to attend the second interview;

   (c)the fact that the applicant was subsequently provided with an opportunity to comment on adverse information by the delegate in writing and his approach to that request;

   (d)the fact that the applicant himself did not request an interview before the Authority.[21]

   [21] Paragraphs [3] to [8] of the Authority’s decision record at court book page 192.

2. At paragraph [9] of the Authority’s decision record, the Authority relevantly stated:

   Having considered this and the circumstances I outlined above, I have decided not to invite the applicant to provide further information, at interview or otherwise.  I am satisfied the applicant had an opportunity to provide oral evidence to the delegate on two occasions and did not attend without sufficient reason or evidence in support of his reasons.  He was, nonetheless, given an opportunity to respond to adverse information put to him by the delegate and I have considered his response and he has not sought to provide any further evidence or submissions to the Authority in support of his claims or in response to the delegates’ findings.

3. The conclusions reached by the Authority were reasonably open on the material before it and the manner in which the Authority reached those decisions was consistent with its statutory duty to conduct matters before it, principally ‘on the papers’.[22]  The applicant has not identified any circumstances which could be said to render the Authority’s approach, within the statutory framework within which it was operating, unreasonable.  To the extent that the applicant’s application for review alleges at paragraph 1(e) that the Authority unreasonably refused the applicant’s request for an interview, there is no evidence led by the applicant that he in fact requested an interview.  It is clear from the Authority’s reasons at paragraph [8] that in fact, he did not do so.  Nor has the applicant included any evidence in his affidavit which would counter the Authority’s statement at paragraph [8] if its decision record.

   [22] See Migration Act 1958 (Cth) s 473DB.

4. Having regard to the statutory task the Authority had to discharge, the applicant’s claim in ground 1 that it acted unreasonably in not inviting the applicant to attend an interview has very limited prospects of success.

   Ground 2

5. In relation to ground 2, the applicant claims that the Authority failed to consider an integer of the applicant’s claims, namely that he may be imputed with the attribute of being gay and that he faced risk of harm on this basis.

6. To make out this claim, the applicant would need to be able to establish that there was a claim to fear harm from being imputed as being gay, as opposed to a fear of harm as a result of being gay, which squarely arises from the material before the Authority and which was not considered.[23]

   [23] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.

7. It is clear from a fair reading of the Authority’s decision record that it considered the applicant’s claim to fear harm as a result of being homosexual.  At no stage does the applicant claim that he feared harm because of being attributed the characteristic of being homosexual, nor does any such claim squarely arise from the material. 

8. In his arrival interview, the applicant stated that people would be harassed in Iran for different reasons including how they dressed and how they did their hair.  The Authority considered this aspect of the applicant’s claim at paragraph [25] of its decision.

9. As such, this ground has no real prospects of success. 

   Ground 3 and 4

10. In relation to grounds 3 and 4, the applicant claims to have been denied procedural fairness by virtue of the Authority:

    (a)failing to alert the applicant to new issues before the Authority of which the applicant was not previously aware, or alternatively, departing from the Department’s reasoning; and

    (b)failing to conduct a review as required by section 473CC(1) and failing to consider whether to get new information from the applicant under section 473DC.

11. Before I deal with this ground, I note that the applicant was provided with the opportunity to file an amended application by orders made on 11 October 2021.  Had he done so, he may have clarified the basis of this ground of review.  He did not exercise that right.

12. There are a number of difficulties with these grounds of review.  First of all, the applicant does not identify which matters before the Authority were new matters of which he had not been made aware, or in respect of which the Authority departed from the reasoning of the delegate.

13. In any event, it is clear that the basis of the applicant’s claims for protection as identified by the delegate and the Authority are consistent.  Both the delegate and the Authority noted the applicant’s failure to attend either of the interviews before the delegate without any reasonable excuse, and also noted the applicant’s response to the delegate’s correspondence following the second scheduled interview in which adverse matters were put to the applicant.

14. The delegate and the Authority both identified concerns with the applicant’s claims about fear of harm because of being a homosexual and both came to the conclusion that the applicant was not homosexual as claimed.  The delegate and the Authority also considered whether the applicant would face a risk of harm as a failed asylum seeker and both concluded that he did not.

15. There is nothing in the Authority decision record which suggests that it departed from the reasoning of the delegate.  In addition to the matters considered by the delegate, the Authority also considered whether the applicant faced a risk of harm arising from:

    (a)his religious beliefs or lack thereof;[24] and

    (b)the manner of his dress.[25]

    [24] Paragraph [24] of the Authority decision record at court book page 195.

    [25] Paragraphs [25] to [27] of the Authority decision record at court book pages 195 to 196.

16. The Authority was not satisfied that applicant faced a risk of harm arising from either of these matters.  In considering these additional possible grounds, the Authority in fact gave the applicant the benefit of the doubt by giving consideration to other possible claims which might be said to arise from his application and other material filed.  This is not a case in which the Authority departed in its reasoning from that undertaken by the delegate in a way which might warrant putting those matters to the applicant.

17. Finally to the extent that ground 4 relates to the failure to invite the applicant for a further interview, my reasons set out above apply equally to this ground.

18. For each of these reasons, grounds 3 and 4 would have no reasonable prospects of success on review.

    Ground 5

19. Ground 5 simply states that the applicant is seeking legal advice.  This does not disclose any proper ground of review.

    CONCLUSION

20. For each of these reasons, I am not satisfied that it is in the interests of justice for the extension of time sought to be granted in this case.

21. I therefore order that the applicant’s application for an extension of time be dismissed with costs.  I make the orders set out at the commencement of these reasons.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Deputy Associate:

Dated:       18 February 2022