CSX18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 230
•14 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CSX18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 230
File number(s): MLG 1456 of 2018 Judgment of: JUDGE TAGLIERI Date of judgment: 14 March 2024 Catchwords: MIGRATION – application for an extension of time – review of Tribunal decision to refuse protection visa – moderate delay – lack of satisfactory explanation for delay – failure to particularise ground of review – no reasonably arguable grounds of jurisdictional error demonstrated – not necessary in the interests of justice to grant the extension of time – application for the extension of time refused Legislation: Migration Act 1958 (Cth)
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 403 ALR 604
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 7 February 2024 Place: Hobart For the Applicant: Applicant in person Solicitor for the First Respondent: Mr Glass, Mills Oakley Lawyers ORDERS
MLG 1456 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CSX18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
14 MARCH 2024
THE COURT ORDERS THAT:
1.The application for an extension of time filed 28 May 2018 to apply for judicial review pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $2,500.
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 TAGLIERI:
By application filed on 28 May 2018 (“the review application”) the applicant seeks review of a decision of the second respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 13 March 2018 (“the reviewable decision”), whereby the Tribunal affirmed the first respondent’s refusal of a Protection (Class XA) (subclass 866) Visa (“the protection visa”) to the applicant.
The applicant, who was 12 years old at the time of the Tribunal’s decision and 17 years old at the time he made the review application, is currently 18 years old. He seeks to invoke the Court's jurisdiction to review the decision of the Tribunal pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”). However, the review application was filed outside the 35 day time limit prescribed by s 477(1) of the Act.
Accordingly, the applicant is required to persuade the Court to make an order extending the time for filing the review application if its review jurisdiction is invoked according to law.[1]
[1] Section 477(2) of the Act.
The review application identifies two grounds for seeking an extension of time, being:
(a)Delay was caused by applicant who failed to get help from ASRC;[2] and
(b)It is in the interests of justice that extension of time be granted.
[2] Which I infer is a reference to the Asylum Seeker Resource Centre.
BACKGROUND AND PROCEDURAL HISTORY
On 11 January 2023, Orders were made for the procedural preparation for a hearing of the extension of time issue. Relevantly that:
The Applicant file and serve a written outline of submissions on which he intends to rely at the hearing at least 28 days before the hearing.
In the event that the Applicant seeks to rely on other evidence or documents, he file and serve such evidence or documents at least 35 days before the hearing.
The First Respondent file and serve written submissions at least 14 days prior to the hearing date.
Initially a hearing was listed for 15 September 2023 but due to subsequent unavailability of the Court, the hearing was adjourned to 6 February 2024. At the hearing on 6 February 2024, the applicant, his mother and the first respondent’s legal representative appeared, but the interpreter who had been arranged by the Court to assist the applicant did not.
Accordingly, the hearing was stood over until 7 February 2024. At this time a Mandarin interpreter appeared and assisted the applicant and his mother during the hearing. The first respondent was represented by a legal practitioner, Mr Glass.
There is no dispute that the applicant filed the review application 41 days outside of the prescribed period.
EXTENSION OF TIME - CONTENTIONS
The applicant was invited to address the Court, but seemed to hesitate and so I enquired if he preferred for the first respondent's submissions to be made first. The applicant expressed a preference to hear the submissions of the first respondent and then respond.
The Court Book filed 22 July 2019 was received in evidence and marked as Exhibit R1. There was some initial confusion from the applicant about whether he had received the Court Book and written submission filed by the first respondent, but eventually he confirmed that he had received both.
Regardless, I requested that the interpreter translate all the submissions verbalised by Mr Glass and the hearing proceeded in that manner.
The ultimate submission made by the first respondent was that the extension of time should be refused because the review application and grounds of asserted jurisdictional error had no underlying merit. Mr Glass also addressed and vocalised the written submissions that had been filed and served.
First Respondent’s contentions
By reference to the non-exhaustive considerations relevant to whether an extension of time should be granted,[3] in summary the following submissions were made for the first respondent:
[3] See Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 403 ALR 604.
(a)The delay in filing the application for review was significant, 41 days outside the prescribed period, and it is necessary for the applicant to demonstrate why it is necessary in the interests of justice to grant the extension of time.
(b)Noting that the applicant did not file additional evidence or submissions when ordered to do so in January 2023, the only explanation or reason for the delay given by the applicant are those referred to in the review application.[4]
(c)The explanation given is unsatisfactory and there is no evidence about what, if any, steps were taken to get assistance from the ASRC or if the ASRC delayed in giving him assistance.
(d)The first respondent accepted that it suffers no prejudice, other than costs, if the extension of time is granted. However, it was submitted that the substantive application has no merit as the proposed grounds of review are not reasonably arguable or sufficiently arguable which is clear from the fact of the Tribunal’s written reasons.
(e)Concerning proposed ground 1:
(i)To the extent it relies on error on the part of the delegate of the first respondent, this is incapable of founding review jurisdiction in the Court, as the delegate’s decision is a primary decision.[5]
(ii)Where it is taken to assert a failure by the Tribunal to consider the applicant’s claims, it provides no particulars of the evidence or facts not considered and is not reasonably arguable.
(iii)Further, the written reasons of the Tribunal demonstrate that the claims advanced about fear of persecution from loan sharks were considered and rejected for reasons that were open to it.[6]
(f)Concerning proposed ground 2, which asserts error by the Tribunal not having “sufficient regard to the claim of the applicant as a minor”, the complaint is not particularised or supported by evidence. Further, the complaint is baseless because the applicant’s parents were treated as his common law guardians and the Tribunal was expressly mindful of the applicant’s age and vulnerability. This was said to be apparent by its written reasons at [37]-[50].[7]
[4] See above at [4] of these reasons.
[5] Section 476(2) of the Act excludes from Court review, the first instance decision of the first respondent or its delegate.
[6] Respondent’s submissions filed 1 September 2023 at [28]-[29], citing Exhibit R1 at pp 157 at [43], 158-159 at [46]-[52] and [54]-[55].
[7] Exhibit R1, pp 157-158.
In conclusion, it was submitted for the first respondent that the delay in filing is significant and not sufficiently explained and, in any event, the substantive grounds for review fail to identify arguable jurisdictional error, meaning that it is not necessary in the interests of justice to grant the extension of time sought.
Applicant’s contentions
In view of the applicant’s age, I invited both the applicant and his mother to make submissions. The submissions made addressed why the applicant said that his grounds of review were arguable, but related to topics and claims not covered by the grounds set out in the review application.
Despite this, I heard the submissions and gave them consideration, acknowledging that the applicant was self-represented and still a minor being assisted and represented by his mother, who he confirmed was authorised to speak for him.
It was said that the Tribunal did not take into account that they are Chinese and as such are persecuted in Malaysia. In particular, that persons of Chinese race and origin are treated differently and experience hardship, meaning their lives would be worse if they were made to return to Malaysia.
I enquired if the claim referred to above at [17] had been put to the Tribunal and whether there was evidence of this if it was. In reply, the applicant’s mother stated that she could not recall if it was put but that they did say that they were racially discriminated against and disadvantaged in Malaysia. Examples were given, such as being unable to obtain bank loans.
The applicant’s mother then expanded her submissions, saying that living in Malaysia had become a burden and that in Australia they could express themselves confidently and not be mocked. She said that Australian people are patient, do not mock or discriminate and there is a sense of security for them in Australia. The general tenor of the submissions was that life for the family was better in Australia.
The applicant said he wanted the Court to take into account a letter from Ms Foster (formerly Watson), from the Southern Migrant and Refugee Centre, dated 17 January 2024. This had not been filed but had been provided to the first respondent that morning, who forwarded it to my Associate during the hearing. Although it was not before the Tribunal, Mr Glass advised that there was no opposition to the Court considering the letter, providing he could make a submission in reply. The letter was received and marked as Exhibit A1.
Ms Foster states that she is a family support worker and it can be inferred that the information provided in the letter has been given to Ms Foster by the applicant. It records that the applicant has traumatic memories of time in Malaysia relating to:
·Withdrawal of prize money initially awarded to him for academic performance;
·Being forced to sacrifice physical education lessons, feeling depressed because he loves sport and suffering consequent diminished health and fitness;
·Being forced to appear in front of a school and humiliated because he had kissed a girlfriend. Later, students were instructed not to interact with him leading to isolation and painful memories;
·His opinion that the government is not favourable to Chinese people in Malaysia and the climate is not good for his health as it is hot and humid and he is prone to heatstroke; and
·Everything in Australia being better.
Ms Foster’s letter concludes by asking the Court to favourably consider the applicant’s request for asylum. The applicant did not provide any specific submission about the letter, other than that he wished the Court to consider it.
I enquired if the same or similar information in the letter from Ms Foster was before the Tribunal. The applicant and his mother stated that it was the first time that the claims reported in the letter had been raised.
First respondent’s reply submission
Mr Glass submitted that the content of the letter from Ms Foster was “new information” not previously before the Tribunal and could not be a basis for jurisdictional error.
It was also submitted that the claim based on Chinese ethnicity and discrimination were not made and the only reference to the family’s Chinese ethnicity is referred to at [20] of the Tribunal’s reasons.[8] Regardless, the information was incapable of raising a claim of persecution based on ethnicity.
[8] Exhibit R1, p 155.
The only information and evidence relied upon related to the loan shark and economic hardship, both of which were dealt with by the Tribunal and rejected as a basis for protection as refugees.[9] In short, the claims about loan sharks and an inability to support themselves were found not to be credible.
[9] Exhibit R1, p 159 at [54]-[56].
EVALUATION
By virtue of s 477(2) of the Act, the Court should only extend the limitation period referred to in s 477(1) if it is necessary in the interests of the administration of justice.
There are no express statutory criteria in the Act to inform whether it is in the interests of the administration of justice to extend time under s 477(2). However, many authorities have established that generally three non-exhaustive factors may be considered,[10] being:
·Whether there has been a reasonable and adequate explanation for the delay;
·Whether there is any prejudice to the respondent; and
·Whether the applicant's substantive case for judicial review is sufficiently arguable to justify the extension of time.
[10] See, eg, SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67 at [15]-[17]; and Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [12].
I consider the delay of 41 days to be a moderate delay. Further, I note that the Tribunal’s decision appears to have been initially sent to the applicant’s previous representative by email on 15 March 2018,[11] and then sent to applicant’s email address on 16 March 2018, and not sent to the postal address notified to the Tribunal on 6 October 2017, it may be that the decision only came to the notice of the applicant at a later date.
[11] Exhibit R1, pp 146-147.
However, there has been no satisfactory explanation for the delay for the reasons submitted by the first respondent and referred to above at [13]. As the applicant is now relying on the letter of 17 January 2024 from Ms Foster, it is possible that he had sought advice from her or the ASRC but not received it within the 35 day prescribed time limit. However, I am not prepared to draw this inference as it involves pure speculation and the applicant did not offer any further explanation on oath/affirmation or make a submission when given the opportunity to do so.
The lack of satisfactory explanation for the delay in filing the review application weighs against the granting of the extension of time.
The first respondent properly conceded it would not suffer prejudice, other than as to costs. Accordingly, I consider this consideration to be neutral and does not weigh against the extension being granted.
In ground 1 of the review application, the applicant seeks to argue that the Tribunal did not consider the full facts, without identifying or particularising what facts were not considered. The lack of particularisation alone is proper basis for recognising the ground to be unarguable.[12]
[12] NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37], citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; and SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21].
Had the applicant identified what facts were before the Tribunal and not considered, this may have been capable of constituting arguable jurisdictional error. However, in submissions before the Court, the applicant through his and his mother’s submissions merely sought to re-argue the merits of their claims.
Generously interpreting the applicant’s submissions about Exhibit A1, he may have been submitting that the Tribunal did not consider the more detailed hearsay evidence relevant to his claims of “trouble at school”. But as submitted by Mr Glass, the Court cannot be satisfied that the detailed evidence or information in Exhibit A1 was in fact before the Tribunal. Indeed, the letter from Ms Foster is dated well after the Tribunal hearing and the applicant acknowledged the information was not before the Tribunal.
Despite the reasoning above at [35], the Tribunal was clearly conscious of a claim based on events and experiences of the applicant at school in Malaysia.[13] However, it rejected the claims as failing to qualify for the statutory criteria for protection. Seeking to persuade the Court that the statutory criteria was met amounts to inviting the Court to engage in impermissible merit review as opposed to review as to jurisdictional error within the boundaries of s 476 of the Act.
[13] Exhibit R1, pp 155 at [19]-[20], 157 at [41] and 158-159 at [52] and [58].
Concerning proposed ground 2, as a minor applying for protection and aged only 12 years at the time of hearing before the Tribunal, the conduct of his case necessarily had to be partly through his parents due to what can reasonably be expected to be understood and communicated by a child that age. The Tribunal heard from the applicant and both his parents, who had been affirmed. The Tribunal was clearly aware of the limitations experienced by a minor and allowed both the applicant’s mother and father to be heard and expressly acknowledged the Tribunal’s Migration and Refugee Division Guidelines on Vulnerable Persons, in relation to minors giving evidence.[14]
[14] Exhibit R1, pp 157-158 at [37] and [50].
Although proposed ground 2 asserts that insufficient regard was given to the applicant as a minor, it does not identify what else could or should have been done to enable the applicant to put his case.
The applicant has not submitted that he was denied procedural fairness or that the Tribunal had an obligation to enquire further. But if this is an explanation or particularisation of ground 2, it is not reasonably arguable given:
·The way the Tribunal hearing was conducted, as described at [37] of these reasons; and
·That although the Tribunal has a discretion to seek further information that is usually exercised sparingly,[15] the applicant has not identified what further information should have been requested, how it may have been obtained and its relevance.
[15] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39.
DETERMINATION
Critically and unfortunately for the applicant, I have concluded that it would be futile to grant an extension of time because he has not persuaded me that there is a sufficiently arguable case that may demonstrate jurisdictional error on the part of the Tribunal. The lack of arguable prospects in the applicant’s grounds heavily weighs the balance of relevant considerations being against granting the extension sought.
There will be an order dismissing the application for extension of time pursuant to s 477(2) of the Act.
COSTS
Mr Glass submitted that should the application for extension of time be refused, an order was sought against the applicant that he pay the first respondent’s costs fixed in the sum of $4,000.
The Court has a wide discretion in relation to awarding costs and in usual circumstances an unsuccessful applicant will be ordered to pay the successful party’s legal costs. Subject to being persuaded otherwise, the usual order appears appropriate in this case.
The fixed sum claimed by the first respondent is slightly below the amount provided in Part 2 of Schedule 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth), for a matter concluded after the first court date. The sum claimed provisionally seems a fair and appropriate sum.
I will invite the applicant to make submissions about the costs order sought, before reaching a final view.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 14 March 2024
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