CPF22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1008
Federal Circuit and Family Court of Australia
(DIVISION 2)
CPF22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1008
File number: MLG 1707 of 2022 Judgment of: JUDGE SYMONS Date of judgment: 5 December 2022 Catchwords: MIGRATION – application for an extension of time to seek review of a decision of the Administrative Appeals Tribunal – grounds without merit – not in the interests of the administration of justice to extend time – application dismissed Legislation: Migration Act 1958 (Cth) ss. 5J, 36, 195A, 424A , 425, 425A, 477, 477A Cases cited: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475; [2020] FCAFC 127
DWK17 v Minister for Home Affairs [2019] FCA 66
Minister for Immigration and Border Protection v Makasa (2021) 386 ALR 200; [2021] HCA 1
MZZGC v Minister for Immigration and Border Protection [2015] FCA 842
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Tu-uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of last submission/s: 22 November 2022 Date of hearing: 22 November 2022 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Sparke Helmore ORDERS
MLG 1707 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CPF22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE SYMONS
DATE OF ORDER:
5 DECember 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application for an extension of time filed 20 July 2022 be dismissed.
3.The Applicant pay the costs of the First Respondent in the fixed amount of $3,930.
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
JUDGE SYMONS:
INTRODUCTION
By an application filed on 20 July 2022 the applicant seeks judicial review of a decision of the second respondent (“the Tribunal”) dated 7 June 2022, to affirm a decision of a delegate of the first respondent (“the Minister”) to refuse to grant the applicant a protection (Class XA) visa.
Before the applicant can prosecute his application for judicial review, he must first satisfy the Court that it would be necessary in the interests of the administration of justice that he be granted an extension of time to do so. This is because his application was filed 8 days after the time specified in s 477(1) of the Act (being within 35 days of the date of the Tribunal’s decision).
The Minister opposes the granting of an extension of time on the grounds that the application for judicial review does not reveal a basis upon which the Court should be satisfied it is necessary in the administration of justice to make an order extending the time for filing of the application.
background
The applicant is a citizen of Estonia who was granted a Temporary Working Holiday visa, valid for twelve months, on 23 September 2009. The applicant arrived in Australia on 21 October 2009.
On 11 October 2010, the applicant applied for an extension of his Working Holiday visa onshore. The applicant was granted an associated Bridging A visa.
On 14 March 2012, a delegate of the Minister refused an application for the extension to the Working Holiday visa, by reason of the applicant’s substantial criminal record. A consequence of this decision was the cancellation of the applicant’s Bridging A visa.
From 6 December 2012 to 16 September 2014, the applicant was detained in immigration detention.
On 15 September 2015 the applicant first applied for a protection visa. He withdrew the application on 19 January 2017.
From 16 September 2014 to 19 September 2019, the applicant was granted several extensions and bridging visas under a series of Ministerial Interventions pursuant to s 195A of the Act.
On 19 September 2020, the applicant became unlawful after his request for Ministerial Intervention was refused.
On 11 November 2021, the applicant was detained, and he has remained in detention since this time.
On 31 January 2022, the applicant applied for the visa with the assistance of a legal representative.
The applicant claimed to have left Estonia because he feared harm from organised criminals, after he became a police informant and wore a microphone to save a child’s life. The applicant claimed that his name was “all over the news” and that the criminals would seek to turn him into a drug mule, as retribution. The applicant could not hide in Estonia as it is a small country and he did not trust the authorities to protect him.
On 23 February 2022, the delegate refused to grant the applicant the visa (CB 71-79). The delegate found that the applicant’s claims were not credible based on a lack of evidence and the substantial delay in applying for protection. The delegate found that there was not a real chance or risk the applicant would suffer serious or significant harm for the purposes of ss 36(2)(a) and 36(2)(aa) of the Act.
On 23 February 2022, the applicant applied to the Tribunal for review of the delegate’s decision (CB 80-88).
On 16 May 2022, the applicant’s representative provided submissions and evidence to the Tribunal, which included country information (CB 104-187).
The Tribunal invited the applicant to attend a hearing on 19 May 2022 (CB 97), which he attended by video from detention (CB 191-192). The applicant was represented at the hearing and his partner, Ms Hudynski, gave evidence.
On 3 June 2022, the applicant’s migration agent provided post-hearing submissions to the Tribunal (CB 195-231). The submissions contained and made reference to country information, including on the topic of the right to enter other European Union countries. The submission was made that based on the applicant’s profile, which included identification in media articles, he would be harmed in any EU countries and would not be excluded from protection obligations under s 36(3) of the Act.
On 7 June 2022, the Tribunal affirmed the decision of the delegate (CB 235-262).
THE DECISION OF THE TRIBUNAL
After setting out the procedural background to the review application, including a narrative of the applicant’s migration history, the Tribunal addressed the issue of delay. The Tribunal noted that delay in seeking a protection visa can support an adverse credibility finding as well as a finding that that an applicant does not have a well-founded fear of harm. The Tribunal found that in this case, the applicant’s delay of approximately six years before making his first application for protection and a further six years until his second application for the visa, led it to place little weight on the applicant’s evidence in relation to each of his claims (CB 242 [27]-[31]).
The Tribunal recorded the evidence of the applicant and that of his partner, Ms Hudynski. The Tribunal accepted Ms Hudynski’s evidence that if the applicant was returned to Estonia it would have a devastating effect on her and her family, including her son (CB 244-245 [40]).
The Tribunal then assessed the applicant’s claims to be a refugee. The Tribunal dealt first with the applicant’s claim to apprehend harm on return to Estonia as a member of a particular social group based on him being a person who has been an informant of the authorities and/or has provided sensitive information to the authorities against criminal gangs. Despite some reservations, the Tribunal accepted that the applicant as an informant in relation to the kidnapping of Ms Karu could have a characteristic that would distinguish him and the group from the rest of the society and accepted that the applicant was a member of the particular social group as claimed (CB 246-247 [49]-[53]).
The Tribunal also accepted, notwithstanding it had considerable doubts about the applicant’s claims reflecting the vague nature and lack of detail in the applicant’s evidence, that based on newspaper articles provided to the Tribunal, the applicant did act as an informer to the authorities concerning the planned kidnapping of Ms Karu (CB 249 [60]).
The Tribunal found however that there was no real chance the applicant would be seriously harmed by criminal syndicates, including by being forced to transport drugs as claimed, having regard to the applicant’s own evidence and the information contained in the newspaper articles which suggested that those responsible for the kidnapping attempt had acted alone (CB 250 [63]).
The Tribunal did however accept the applicant’s submission that there was a real risk that he would be harmed by the individuals involved in the kidnapping should he return to Estonia given that the population of Estonia is relatively small (CB 250 [65]).
The Tribunal went on to consider whether, despite this finding, the applicant might not have a well-founded fear of persecution (on an application of s 5J(2) of the Act) because effective protection measures were available to him in Estonia. The Tribunal considered a range of country information and found that the Estonian police and the Estonian Security Police (or “KAPO”) would provide effective protection to the applicant from physical harm so that s 5J(2) was engaged in his case (CB 250-251 [66]-[71]).
The Tribunal next considered the applicant’s claim that if he was returned to Estonia there was a real chance he would be seriously harmed by reason of his mental health condition. In this context the Tribunal referred to the applicant’s presentation at the Tribunal hearing, which it described as “lucid and cognisant throughout the hearing and [that he] was able to give evidence and respond meaningfully to the Tribunal’s questions”. The Tribunal also noted that the applicant had not provided a medical report in relation to his mental health. The applicant had however provided affidavit evidence that described a deterioration in his mental health while he was in an earlier relationship and while in detention. The Tribunal accepted, based on this evidence, that the applicant had struggled with his mental health as claimed (CB 252 [72]-[73]).
The Tribunal accepted, based on the available country information, that mental health facilities in Estonia were under resourced. However, it was not satisfied, for the purposes of s 5J(4)(c) of the Act, that the government of Estonia would deny the applicant mental health treatment on a systematic and discriminatory basis or that any failure on the part of the applicant to access mental health services upon any return to Estonia would involve systematic and discriminatory conduct. The Tribunal found for this reason that the applicant did not have a well-founded fear of persecution by reason of his mental health condition (CB 253-254 [79]-[80]).
The Tribunal had regard to its anterior findings regarding the refugee criteria, and found the applicant did not meet the complementary protection criteria under s 36(2)(aa) of the Act. In particular, the Tribunal found that the applicant could access protection such that he was taken not to face a real risk of significant harm pursuant to s 36(2B)(b) and that he would receive adequate treatment for his mental health such that there was no real risk he would face significant harm on this basis (CB 254-256 [82]-[89]).
The Tribunal recorded an alternative finding that the applicant, as a citizen of the European Union, could avail himself of protection in Germany so that s 36(3) of the Act was engaged (CB 257 [97]).
The Tribunal also recommended that the applicant be referred for Ministerial Intervention (CB 258-259 [101]-[107]).
PROCEEDINGS IN THIS COURT
On 22 August 2022, a Registrar of this Court made procedural orders including that the applicant file and serve at least 28 days before the hearing of his application for an extension of time, written submissions, any amended application with proper particulars of the grounds of the application and any additional evidence on which he seeks to rely.
Consistent with the procedural orders, the Minister, on 20 September 2022 filed a court book, and on 9 November 2022, filed written submissions. The applicant did not produce any material responsive to these orders (or at all). The applicant therefore relies upon his application and two affidavits filed on 20 July 2022. One of these affidavits attaches a copy of the Tribunal decision. The other affidavit identifies matters that go to the applicant’s explanation of the circumstances that he says explain his delay in filing an application for judicial review and justify the Court granting an extension of time.
The hearing of the application for an extension of time was listed before me on 22 November 2022. On that date the applicant appeared in person and the Minister was represented by solicitor advocate, Ms Hodkinson. At the outset I confirmed with the applicant that he had received and had a copy with him of the court book and of the Minister’s written submissions. The applicant told the Court that he had read the Minister’s submissions.
I clarified with Ms Hodkinson at the outset of the hearing the Minister’s attitude to the extent of the delay (8 days) and the explanation given. Ms Hodkinson accepted that the delay was relatively modest and not a significant impediment to the grant of an extension of time. The Minister did however maintain his opposition to an extension of time on the basis that the explanation for the delay was unsatisfactory and having regard to the merits of the substantial application.
For the benefit of the applicant, I explained the nature of the application that the Court was considering and that generally, in considering an application of this kind, the Court is concerned with the length of the delay, the explanation for the delay and the merits of the proposed substantive application.
I identified the explanation provided by the applicant insofar as it emerged from his application and affidavit material and asked the applicant if there was anything further that he wanted to tell the Court as to why his application had been filed 8 days out of time. The applicant for this purpose went into the witness box and essentially repeated the matters identified in his application document. The Minister was offered the opportunity to cross-examine the applicant but declined to do so.
I formed the view based on the applicant’s evidence to the Court and his interactions more generally, that he was able to participate meaningfully in the hearing, albeit in a way that reflected his status as a person without the benefit of legal assistance.
In the context of inviting the applicant to address the Court on the merits of his proposed application for judicial review I explained to him the limits of jurisdictional review and jurisdictional error and identified the following categories of mistake that might engage the Court’s review jurisdiction:
(a)where the decision-maker identifies the wrong issue or asks the wrong question;
(b)where the decision-maker ignores relevant material;
(c)where the decision-maker relies on irrelevant material;
(d)where the decision-maker fails to follow mandatory procedures;
(e)where the decision-maker shows actual or apprehended bias; and
(f)where the decision is illogical, irrational or unreasonable.
The applicant was invited to tell the Court what (in his view) was wrong with the decision of the Tribunal.
The applicant told the Court that it had been impossible to produce enough evidence to satisfy the Tribunal about his case, in particular as it concerned the Tribunal’s complementary protection findings. The applicant also referred to the decision of the High Court in Minister for Immigration and Border Protection v Makasa [2021] HCA 1 (“Makasa”) and argued that the Tribunal could not rely upon the same facts again and could not use the applicant’s criminal record against him. The applicant was also critical of the Tribunal’s finding that he could be returned to a European Union country.
EXTENSION OF TIME
It may be accepted that despite the lack of legislative prescription in relation to how the interests of the administration of justice might be satisfied for the purpose of s 477(2) of the Act, the factors which generally inform the exercise of the discretion to extend time include the following:
(a)the length of the delay and whether there has been a reasonable and adequate explanation for it: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [47] (citing SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [46]-[48]);
(b)whether there is any prejudice to the Minister; and
(c)whether the applicant’s proposed grounds seeking judicial review justify the extension of time.
The question of substantive merit was addressed recently by the High Court in Tu-uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604. In particular, the Court considered the question of whether the exercise of discretion in s 477A(2) of the Act (couched in identical terms to s 477(2) of the Act) might involve more than an impressionistic assessment of the merits of a proposed ground of review. Although the decision contained two separate judgments, there was agreement that the power conferred by s 477A(2) is unfettered and allows the Court to look at a range of facts and circumstances and that, reflecting the breadth of the discretion, it is within the Federal Court (and this Court’s) jurisdiction to have regard to the merits of a proposed application in such manner as it considers appropriate.
In endorsing this approach, the High Court rejected the view previously promulgated by a Full Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 that “the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review”. As the majority explained, s 477(2) entrusts to the Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application.[1]
[1] See Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 at [19] (Kiefel CJ, Gageler, Keane and Gleeson JJ)].
The majority was also at pains to point out that the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice. In this regard, the level of satisfaction for the Court to reach was described as “not low”.
Adopting this approach, and in circumstances where the delay in filing is relatively brief and not emphasised as a critical issue by the Minister, the balance of this judgment is directed at an evaluation of the applicant’s explanation for the delay and the merits of the proposed grounds of review.
EXPLANATION FOR DELAY
The explanation for delay is identified by the applicant in his application and supporting affidavit as follows:
(1)The outcome of High Court case, Makasa, has now been released. This case confirms my suspicion that I was denied procedural fairness and natural justice during my Administrative Appeals Tribunal (AAT). The Makasa case now confirms the Senior Member made several serious legal errors that has caused me a miscarriage of justice.
(2)Due to a lack of funds and resources I did not have access to legal representation or advice.
(3)I do not have a good understanding of the legal processes in Australia in regard to immigration and deportation and was mistakenly under the assumption that the AAT decision was final and there were no grounds for appeal.
(4)Once I realised I was mistaken and that I could appeal I lacked the confidence, due to my poor English and limited education, to attempt an appeal.
(5)I am only now able to appeal my AAT decision because a fellow detainee, Julian Taylor, is willing and able to assist me.
(6)I have limited English skills and cannot research the internet for advice, assistance and direction.
(7)Now I have assistance I am able to lodge this appeal against the AAT decision.
The Minister submitted, in relation to the explanation offered by the applicant, that the decision of Makasa was not relevant to his case and that a lack of legal advice or knowledge is not a reasonable explanation for the delay (referring to the decision of DWK17 v Minister for Home Affairs [2019] FCA 66 at [7]-[14]).
I accept, including for reasons that are explained in greater detail below, that the decision of Makasa is not relevant to the case that the applicant intends to prosecute. More importantly, as it engages with the explanation for the delay, the decision of Makasa was published on 3 February 2021, so that it was released well before the date of the Tribunal decision (made on 7 June 2022). While the applicant might not have been immediately aware of the decision, it is not the case that the timing of its release was a matter that could have provided an explanation for the delay in filing.
I do however accept that the confluence of the applicant’s lack of legal representation and understanding of the Australian legal system and difficulty accessing equipment in the detention facility, are factors that supply a satisfactory explanation for the relatively short delay in the filing of his application for judicial review. As Mortimer J observed in MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 at [15], although attributes such as a lack of access to legal representation, unfamiliarity with the Australian legal system, insecure migration status and future in Australia, and lack of functional English might be attributes shared with many litigants in the migration jurisdiction, this is no reason to diminish their importance.
I consider that this factor (of explanation for delay) weighs modestly in favour of the extension being granted.
MERIT OF PROPOSED GROUNDS
The applicant in his application for judicial review identifies his proposed ground of review as follows:
The respondent’s decision was unreasonable and erroneous:
1.The Administrative Appeals Tribunal failed to apply and interpret the law correctly and thus denied the Applicant procedural fairness and natural justice.
As noted above, the applicant described the error in the Tribunal decision as involving (by reference to the decision of Makasa) an impermissible reliance upon the same facts of the applicant’s criminal record. The applicant was also critical of the Tribunal’s finding that he could be returned to a European Union country.
On the question of merit, the Minister submitted that the fact that meaningful particulars had not been provided by the applicant in the framing of his ground of application for review (refer [52] above) supplied a sufficient basis for the proceedings to be dismissed (referring to WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60]).
To the extent that the identified ground might amount to a broad complaint about procedural fairness, the Minister submitted that the Tribunal had complied with its obligations under Division 4, Part 7 of the Act. By invitation dated 13 April 2022, the applicant was invited to attend a hearing by video before the Tribunal on 19 May 2022, in compliance with s 425 and 425A of the Act which he attended with the assistance of his representative and his witness. The applicant was on notice from the delegate’s decision (the delegate rejected the applicant’s claims at the factual level) and the Tribunal’s questioning at the hearing, that the credibility of his claims, whether they met s 5J of the Act, and whether effective protection was available to the applicant were the determinative issues on review. No breach of s 425 was, in these circumstances, apparent.
The Minister submitted further that the Tribunal’s decision was based on country information, the applicant’s written material before the delegate, written and oral evidence before the Tribunal and the Tribunal’s subjective appraisals of his evidence. As the first three matters fell within the exceptions to s 424A – being s 424A(3)(a), (ba) and (b) respectively – and the fourth did not constitute “information” for the purposes of s 424A(1) of the Act, no breach of s 424A was apparent.
Addressing the contention that the Tribunal had committed an error of a kind identified in the decision of Makasa, the Minister submitted that the Tribunal had been entitled to rely upon information contained in the Department’s file and the delegate’s decision to affirm the decision to refuse the applicant the visa.
In circumstances where the applicant was self-represented, I am not persuaded that it would be appropriate to determine the question of merit unfavourably to the applicant on the basis that his ground of review was not particularised. Instead, my conclusion that the decision of the Tribunal was not affected by any discernible jurisdictional error reflects my review of the decision with an eye especially attuned to the question of whether the decision was procedurally fair and whether it might have been affected by an issue of the kind identified by the High Court in Makasa.
I consider that the Tribunal engaged in a careful and comprehensive evaluation of the claims advanced by the applicant and dismissed them for reasons that were logical and based in large measure on its appraisal of country information. The Tribunal (unlike the delegate) accepted most of the applicant’s factual claims, including that he had acted as an informant, that his status as an informant was notorious in Estonia, and that he suffered from mental health challenges. The Tribunal found that these factual matters did not engage Australia’s protection obligations because, on a review of country information (the choice of which was a matter for the Tribunal), it found that Estonia could offer the applicant effective protection and access to mental health services and because (this supplying an independent basis for affirming the decision), the applicant had failed to take all possible steps to avail himself of a right to enter and reside in Germany.
I consider that each of these findings was open to the Tribunal and that in reaching them, the question of the applicant’s criminal record did not inform the analysis so that any question of repeated reliance on a criminal history (which in any event arose in a different statutory context in Makasa) did not arise.
It is also clear from the post-hearing written submission that the applicant (through his representative) understood that dispositive issues in his review would include the protections offered by the Estonian police (refer CB 201-202) and the applicant’s right to enter other European Union countries (refer CB 206-208).
For these reasons, I am satisfied that the ground of review identified by the applicant in his application for review and the matters identified by the applicant in oral submissions to the Court, do not have merit.
Further, although I have found that the explanation for delay is a matter that weighs modestly in favour of granting the applicant an extension of time, I am not persuaded that it would be necessary in the interests of the administration of justice to extend time.
DISPOSITION
I will order, pursuant to s 477(2) of the Act, that the application for an extension of time be dismissed and the applicant pay the first respondent’s costs of and incidental to this application in an amount that reflects this Court’s scale of costs for an interim hearing.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 5 December 2022
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