CTF21 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 309

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CTF21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 309

File number(s):

SYG 381 of 2023

Judgment of:

JUDGE GIVEN

Date of judgment:

27 April 2023  

Catchwords:

MIGRATION – Second application for extension of time – whether permissible to make such an application – second application made in context of applicant’s impending removal from Australia – no present statutory bar to applicants bringing multiple applications for extension of time in the Federal Circuit and Family Court of Australia subject to questions of estoppel and abuse of process

Legislation:

Federal Circuit and Family Court of Australia Act2021 (Cth) s 190

Federal Court of Australia Act 1976 (Cth) s 37M

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 36, 473DC, 476, 476A, 477

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.3

Federal Court of Australia Rules 2011 (Cth) r 26.01 and Part 35

Cases cited:

AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30

BDQ16 v Minister for Immigration [2017] FCCA 703

Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 109

BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49

BZAGD v Minister for Immigration and Border Protection [2016] FCA 670

Carr v Finance Corporation of Australian Ltd (No 1) (1981) 147 CLR 246

CTF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 144

Daniel v Minister for Immigration & Multicultural and Indigenous Affairs (2004) 205 ALR 198

DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) ALR 246

DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246

DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 564

Hall v Nominal Defendant (1966) 117 CLR 423

Hickey v Australian Telecommunications Commission (1983) 47 ALR 517

Hui v Minister for Immigration [2011] FMCA 486

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344

Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516

Jess v Scott (1986) 12 FCR 187

Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 403 ALR 604

Kaur v Minister for Immigration and Citizenship [2010] FMCA 634

Lucic v Nolan (1982) 45 ALR 411

Matson v Attorney-General (Cth) [2021] FCA 161

Minister for Home Affairs v DUA16 (2020) 271 CLR 550

Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Muzammil v Minister for Home Affairs [2019] FCCA 1564

MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585

MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478

MZYII v Minister for Immigration [2011] FMCA 193

National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315

Nominal Defendant v Manning (2000) 50 NSWLR 139

Pearson v Minister for Home Affairs [2022] FCAFC 203

Re Golding (2020) 384 ALR 204

SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410

SZFGO v Minister for Immigration & Citizenship [2008] FCA 1478

SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1816

SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702

SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442

Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55

Tomlinson v Ramsey Food Processing Ltd (2015) 256 CLR 507

Tran v Minister for Immigration & Border Protection [2014] FCA 533

Tran v Singh [2019] FCA 70

Walton v Gardiner (1993) 177 CLR 378

Division:

Division 2 General Federal Law

Number of paragraphs:

93

Date of hearing:

27 April 2023

Counsel for the Applicant:

Mr O Jones (Eleventh Wentworth)

Solicitor for the Applicant:

Human Rights for All

Counsel for the Respondents:

Mr T Reilly

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

SYG 381 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CTF21

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE GIVEN
DATE OF ORDER:	27 April 2023

THE COURT ORDERS THAT:

1.Order 1 made on 27 March 2023 is vacated.

2.Leave is granted to the applicant to rely on the amended application in the form appended to the written submissions filed for him on 17 March 2023.

3.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time made on 6 March 2023, as amended, is refused.

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 GIVEN:

1. Before me is an application for an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) to seek judicial review under s 476 of the Act of a decision of the Immigration Assessment Authority (Authority) dated 6 June 2018, affirming a decision of a delegate of the first respondent (delegate) to not grant the applicant a protection visa (second EOT application).

2. In support of the second EOT application the Court has the following evidence:

   (a)Affidavit of the applicant affirmed 6 March 2023 (applicant’s Affidavit);

   (b)Affidavit of Alison Mary Battisson affirmed 23 March 2023 which annexes a transcript of the applicant’s protection visa interview held on 20 December 2016 (transcript Affidavit);

   (c)Court Book (CB) filed in this proceeding by the first respondent (being the identical Court Book also filed in proceeding MLG2041/2021), which was tendered for the applicant and marked Exhibit “1A”; and

   (d)DFAT Country Information Report for Sri Lanka dated 24 January 2017 which was tendered for the applicant and marked Exhibit “2A”.

   BACKGROUND

3. These proceedings first came before me in my capacity as the Sydney General Federal Law duty Judge on 7 March 2023, in circumstances where an urgent interlocutory injunction was sought by the applicant to prevent his removal from Australia (injunction hearing).  The applicant has previously sought an extension of time in respect of the same Authority decision[1] (first EOT application).  The first EOT application was heard and determined by another Judge of this Court in 2022 (first primary Judge): see CTF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 144 (first judgment).  Initially, the second EOT application appeared to give rise to a potential res judicata question.  As such, on an urgent basis where even the parties had not had an opportunity to consider the question in any detail, and where it seemed fundamental to being able to properly determine for the purposes of any injunction whether the Court had jurisdiction as part of assessing whether there was a serious question to be tried, I granted an injunction temporarily and listed the matter for an expedited hearing before me.

   [1] Referred to at [1] above

4. The following background and summary of the Tribunal’s decision is taken from the first judgment (with Court Book references added) and the first respondent’s submissions in relation to the second EOT application.  It is not in dispute, unless otherwise indicated.

5. The applicant is a 32-year-old citizen of Sri Lanka (CB 11 and 48).  On 24 November 2012, he arrived in Australia as an unauthorised maritime arrival (CB 167). 

6. On 26 April 2016, the applicant applied for Safe Haven Enterprise visa (visa) (CB 34 to 125 and 127).  His claims for protection were set out in a statutory declaration made by the applicant on 19 March 2016 (CB 73 to 81) which (in summary) included that:

   (a)the applicant is an ethnic Tamil and a Hindu (CB 11 and 48);

   (b)in February 2009, the applicant was forcibly recruited by the Liberation Tigers of Tamil Eelam (LTTE) and although he tried to escape, he was recaptured and forced to fight for the LTTE until the end of the war in May 2009 (the applicant did not say this in his entry interview because he was scared to do so) (CB 73 at [8]).  As a result, the applicant is afraid he will be tortured or killed by the Criminal Investigation Department (CID) or Sri Lankan Army (SLA) if he were to return to Sri Lanka (CB 73 at [6] to [10]);

   (c)the LTTE took the applicant to a training base from which he unsuccessfully tried to escape on three occasions (CB 76 at [31] to [33]);

   (d)while with the LTTE, the applicant was afraid he would be killed, but he did not kill anyone (CB 77 at [36]);

   (e)the applicant was forced to stay with the LTTE until 15 May 2009, when he surrendered to the SLA and was placed in a camp as a civilian (despite an army soldier initially identifying him as a member of the LTTE).  The applicant subsequently found out that his father had been killed in a bomb blast in March 2009 and found his mother in a camp (in a place which he named) (CB 77 at [36] to [41]);

   (f)the applicant spent 15 days in the camp but was not safe because he was concerned people may identify him as having fought with the LTTE.  While he was in the camp, the SLA asked people who had “been in the LTTE” to “report”, but the applicant did not do so for fear of being tortured (CB 77 to 78 at [41 to 42]);

   (g)the applicant “bribed [his] way out of the camp” and made his way to Negombo where he stayed for “about one and a half months” before going to India on 14 July 2009 (his “aunt had contacts in Colombo and she knew agents who could get [him] out of the airport with bribes”).  A passport was given to the applicant on 15 June 2009 (CB 78 at [43] to [48]);

   (h)it was difficult for the applicant to survive in India and he returned to Sri Lanka on 10 June 2012.  The applicant claims to have paid bribes in India, and when he returned to Sri Lanka, as he overstayed his visa in India (CB 78 to 79 at [49] to [52]);

   (i)on return to Sri Lanka, the applicant was afraid he would be “targeted and tortured and disappear” because the SLA “were still present and targeting Tamils who they had suspected of supporting the LTTE”.  Two of the applicant’s uncles were not involved with the LTTE but were “abducted by a white van and killed” because their relatives were from a Tamil area (CB 79 [53] to [58]);

   (j)the applicant decided to flee, and departed Sri Lanka by boat on 10 November 2012 (CB 80 at [59] to [62]);

   (k)the applicant claims that if he returns to Sri Lanka the CID or SLA will arrest, beat, torture or kill him because they believe he was “with the LTTE” and being deported from Australia as a “failed Tamil asylum seeker” because “the Sri Lankan Government will have all the details about [him] and will harm [him] because they will suspect [he is] LTTE and fled the country” (CB 80 to 81 at [63] to [73]); and

   (l)the applicant is not safe anywhere in Sri Lanka and, if he returns, he will harm himself (CB 81 at [74] to [75]).

7. On 20 December 2016, the applicant participated in an interview with the delegate (CB 140, 148 and 168).

8. On 22 December 2016, the applicant provided submissions to the delegate (CB 146 to 162).  Among other things, the submissions stated that the applicant feared harm in Sri Lanka by reason of his Tamil race, imputed political opinion (i.e. as an “actual/perceived” supporter of the LTTE and failed asylum seeker, and his membership of a particular social group (i.e. young and able bodied young Tamil males from north Sri Lanka and returnees from the West).  The submissions also contained various references to country information.

9. On 9 August 2017, the delegate refused the visa application (CB 164 to 182) and, on 11 August 2017, the matter was referred to the Authority for review (CB 183 to 185).

   The Authority’s decision

10. On 29 August 2017, the applicant provided submissions to the Authority.  Among other things, he commented on the delegate’s credibility findings and referred to country information that had not been before the delegate (CB 186 to 192). 

11. On 6 June 2018, the Authority affirmed the delegate’s decision (CB 197 to 225).  In making its decision, the Authority:

    (a)in respect of the submissions provided on 29 August 2017, found that it could: (1) consider submissions about the delegate’s credibility findings as they were not “new information” (198 at [4]) and (2) not consider the country information as it was not satisfied that “the … report could not have been provided prior to the delegate’s decision”, the report “constitutes personal information” or “there are exceptional circumstances to justify” considering the report (CB 198 to 199 at [5]);

    (b)accepted: (1) “as credible” that the Applicant was forced to leave his home when the war intensified; and (2) “as plausible” that his family’s land was confiscated around 1989 or 1990 (CB 202 at [11]);

    (c)considered that the claims made by the applicant in his entry interview were “substantially different to subsequent claims”, and was not satisfied that his explanation was credible for not disclosing in his entry interview his “LTTE involvement, including the length of time he was trained by and served with the LTTE” (CB 203 at [13]);

    (d)noted “gaps in [the applicant’s] written statement of claims about his experience with the LTTE”, and was not satisfied that the evidence he gave at interview with the delegate “supports his claims of having been forcibly recruited by the LTTE, having been trained to fight with the LTTE, and of being engaged in a military capacity for the LTTE in the last phase of the war” (CB 203 at [13]);

    (e)was not satisfied that the applicant was “forcibly recruited by the LTTE, or that he was trained to fight and engaged in any military capacity for the LTTE” (CB 203 at [14] and 208 at [24]) for the following reasons:

    (i)it did “not consider plausible that, having been placed on the fighting line in a combat zone, he could have avoided using his weapon by withdrawing from fighting without any adverse consequences” and considered “unrealistic” his claim that there was “weak leadership resulting in withdrawal ‘every time there was action’” (CB 204 at [15]);

    (ii)considered it “highly implausible that the [applicant] would have been able to escape without any injury if he in fact was engaged in any military capacity” at the time of heavy fighting on the morning of 15 May 2009 and had “serious doubts about the veracity of the [applicant’s] claim that he and the 2 girls he was with at the time were able to escape from the fighting line as they feared the intensity of the war and that they were able to find shelter in the house of an LTTE soldier at that time” (CB 204 to 205 at [16]);

    (iii)did “not consider the [applicant’s] account of having been forcibly recruited, trained and engaged in a military capacity by LTTE during the final months of the civil war to be credible” and, further, was “not convinced that the [applicant] was engaged in any military capacity for the LTTE”.  The Authority also considered that if he had “encountered SLA on the front line … it is more likely he would have been taken as a prisoner of war rather than as a displaced person” (CB 205 at [17]);

    (iv)accepted that the applicant’s father was killed as claimed (CB 206 at 18);

    (v)having regard to country information, accepted as plausible that the applicant was placed in “an IDP” camp with other civilians at the end of the war” (CB 206 at [19]);

    (vi)in contrast to what the applicant claimed, it did “not consider it plausible that the applicant would have been able to avoid being placed in the LTTE group [at the camp] if there were any suspicions at that time that he was involved in the LTTE” (CB 206 at [20]); and

    (vii)if the applicant was suspected of having fought for the LTTE: (1) he would not have been able to avoid “being placed with the LTTE group for any reason” at the “Puliyankulam camp” (CB 207 at [22] and 208 at [24]) or “further detention and interrogation at his IDP camp at Menik farm”; (2) he would not have been able to escape from the Menik farm camp (CB 208 at [24]); and (3) it is likely he would have been “held in administrative detention under the Prevention of Terrorism Act” (CB 208 at [24]);

    (f)accepted the applicant travelled to India in July 2009 and returned to Sri Lanka in June 2012 without incident but found that, if he was “a person of any adverse interest to authorities on account of any LTTE connections”, it was not plausible that he would have been able to obtain a passport or leave the airport in Sri Lanka at that time, or “bribe his way out of the airport”.  The Authority was also not satisfied that he “was of any adverse interest to authorities upon his return to Sri Lanka in 2012 because of any suspected LTTE connections” (CB 209 to 210 at [26] to [28]);

    (g)found that the applicant was not a person of any adverse interest to the Sri Lankan authorities on his return to Sri Lanka in 2012 (CB 210 at [29]) .  While it accepted his two uncles “were suspected of being in the LTTE and targeted as claimed”, it was satisfied that he was not a person of interest to authorities (CB 210 to 211 at [30]);

    (h)did not accept that the CID or any Sri Lankan authorities “came to his house in search of him” after he left Sri Lanka in 2012 (CB 212 at [32]);

    (i)was not prepared to accept the applicant’s “very general claim of imputed family profile” in respect of two of his father’s sisters having been “caught by the army” (CB 212 at [33]);

    (j)was not satisfied that the applicant “is or would be perceived to be active in post-conflict Tamil separatism or that he would be identified as a person who constitutes a threat to the Sri Lankan state” (CB 213 at [36]) and, given country information does not support there being “systemic targeting of the Tamil population in general”, was not satisfied he “has a profile that would attract any adverse attention from the Sri Lankan authorities now or in the reasonably foreseeable future” (CB 214 at [40]);

    (k)was not satisfied that the applicant faces a real chance of serious harm “on the basis of his Tamil ethnicity, or because of his residence in a former LTTE controlled area in the North, or because of his male gender or his age as a young able-bodied Tamil male, or because of his experiences in Sri Lanka as the civil war was ending, or because he had fled to and lived in India after the war ended or any combination of these factors” and was not satisfied he has a profile that “would be considered a threat to the integrity of the Sri Lankan state or would otherwise be of concern to the Sri Lankan authorities” (CB 216 at [46]);

    (l)was not satisfied “there is a real chance of harm to the applicant arising because he is returned to Sri Lanka from Australia which is perceived to be a wealthy country” (CB 216 at [47]);

    (m)in respect of the applicant returning to Sri Lanka as a failed asylum seeker, it was not satisfied that he has “a profile that would place him at risk of mistreatment upon return to Sri Lanka or that he is a person of any adverse interest to authorities” (CB 218 at [51]) for reasons including because: (1) he does not have a profile as posing a credible and ongoing threat to national security (CB 218 at [52]); and (2) he previously returned to Sri Lanka from India in 2012 “without any adverse attention from authorities” (CB 218 at [55]);

    (n)in respect of the applicant having departed Sri Lanka illegally, it was: (1) “satisfied that he will not be treated differently to any other returnee with no adverse profile” (CB 219 at [59]; (2) “not satisfied that the totality of treatment that the applicant may experience on return, including being questioned and detained for several hours at the airport, then potentially being detained on remand for up to a few days in overcrowded and unsanitary conditions, and having to pay a fine, amounts to serious harm” (CB 220 at [62]); and (3) any such treatment would, in any event, be pursuant to a law of general application (CB 220 at [63]); and

    (o)was not satisfied the applicant met the criteria in s 36(2)(a) or 36(2)(aa) of the Act (CB 220 to 221 at [65] to [71]).

    First EOT application

1. On 13 August 2021, the applicant made the first EOT application seeking to extend the time in which to seek judicial review of the Authority’s decision.  The first judgment records the following at [14] to [16]:

   14In his application filed on 13 August 2021, the applicant identifies the following three grounds for an extension of time:

   1.It has been difficult for me to manage legal processes from prison and immigration detention because I have not had a lawyer.

   2.My previous representative did not advise me about my legal rights in relation to my protection visa appeal.

   3.        I risk being deported to Sri Lanka where I fear persecution.

   15In his affidavit affirmed on 12 August 2021, the applicant provides the following grounds [reproduced in full] in support of the extension of time.

   4.I am seeking to bring this application approximately 24 (sic) months out of time.  My reasons are that:

   a.Despite my keen interest in pursuing this matter, my circumstances prevented me from managing my matters.  I fear returning home and am committed to this process.

   b.I was in prison when the IAA made its decision and do not recall ever being notified.

   c.I have not had a legal representative for several years and when I contacted my previous representative, they told me they could not help me with the protection visa without paying them extra fees.  I had no income and no money left so I was unable to proceed.

   d.I first discovered that I was rejected by the IAA on 28 April 2021 when someone in immigration detention provided me with the number for Victoria Legal Aid.  A lawyer at VLA explained how I could contact the IAA to request a status update.  The IAA staff spoke to me slowly and emailed me the outcome.  I showed this email to others in the center because my English is not good.  It was here that I discovered the IAA rejected me.  I was extremely disappointed.

   e.I have limited English and rely on free legal services.  I will provide more reasons when I have an opportunity.

   16.The applicant also raises two grounds of review for determination in the event that the extension of time is granted, which are:

   1.        The IAAs decision was legally unreasonable.

   2.        The decision of the IAA was vitiated by illogical and irrational reasoning.

2. At the conclusion of the first EOT application hearing on 22 February 2022, the first primary Judge reserved her decision. The first judgment was delivered on 11 March 2022. The first primary Judge considered the period (1129 days) and explanation for delay, and subsequently found that in the context of the statutory scheme, a delay of more than three years was excessive. Her Honour found that by reference to the magnitude of the delay, the explanation for it must be especially persuasive and that the applicant’s explanation was not so. In particular, the first primary Judge observed that the applicant’s circumstances were no different from many other applicants who did manage to file in time and, further, the applicant had also not explained why it took him an additional three months after coming into the knowledge of the Authority’s adverse decision, to apply to the Court. Accordingly, the first primary Judge found that the length of delay and explanation for it weighed against time being extended: first judgment at [22].

3. The prejudice to the parties was weighed as being a neutral factor in the exercise of the first primary Judge’s discretion to extend time: first judgment at [25].

4. In relation to the merit of the proposed grounds of review in the first EOT application, the first primary Judge records that, in addition to the grounds themselves, her Honour twice gave the applicant an opportunity to explain to the Court what he considered to be wrong with the Authority’s decision, and/or processes adopted by it: first judgment at [29]. Her Honour assessed each of the proposed grounds of review as not achieving a threshold of being arguable, at an impressionistic level: first judgment at [30].

5. The first primary Judge also records having reviewed the Authority’s decision independently and being “unable to discern any matter that, on an impressionistic evaluation” gave rise to any arguable ground: first judgment [31] to [33].   

6. By reference to the applicant’s Affidavit at [12] to [15], the following is said to have occurred following delivery of the first judgment:

   12. After the FCFCA matter was dismissed, I did not have a lawyer. Within the 35 days after the FCFCA decision, I tried many options to get pro bono assistance to appeal the FCFCA decision. I remember I called VLA and they said they could no longer help me. I contacted the Asylum Seeker Resource Centre (ASRC) (emails dated 24 March 2022 and 3 August 2022 annexed as Annexure MD1-7) and they told me over the phone that they could not assist either. It was the same with Refugee Advice and Casework (RACS) - they could not help me.

   13. In desperation, I contacted a private lawyer (Ravi James in Dandenong). I spoke to him over the phone. He gave me an estimate of $25,000 to appeal the FCFCA decision. I could not afford this. Ravi James said he could a Ministerial Intervention for $1,100. My brother paid for this for me. The receipt for this is annexed as Annexure MD1-8.

   14. On 7 April 2022, Rabi James submitted a request for Ministerial Intervention under section 488 of the Migration Act (annexed as Annexure MD1-9). I received an acknowledgement letter on 11 April 2022 (annexed as Annexure MD1-10). I was moved to Christmas Island detention on or about May 2022. I thought my process was ongoing, but I found out from my case manage the Ministerial Intervention was refused while I was on Christmas Island. I cannot now remember when I found out about the refusal. After this was refused, I did not know what else I could do. I could not ask my brother to fund another lawyer to do a Ministerial Intervention, and I had been previously refused by ASRC, RAGS and VLA.

   15. When I was issued with the deportation notice on 1 March 2023 (annexed as Annexure MD1-11), I panicked and became extremely stressed. My hands started to shake-they are still shaking now. I had been in detention since March 2021 and don't understand why I am being deported now. On 1 March 2023, I contacted various Tamil advocates, including Kalyani who I know through contacts from the Tamil Refugee Council (TRC). When I was on Christmas Island, I had previously asked Kalyani to help me, but she didn't respond. On 3 March 2023, Kalyani put me in contact with my current legal representatives who are representing me pro bono. Prior to contacting my current legal representatives, I did not know that they existed as a pro bono law firm.

   Second EOT application

7. By the second EOT application filed on 6 March 2023 the applicant commenced these proceedings. On 7 March 2023, the applicant’s legal representative wrote to the Court’s Registry (by the National Migration Team), seeking an expedited hearing of the interlocutory relief sought to prevent the applicant’s removal from Australia. The injunction hearing took place on the afternoon of 7 March 2023 at the conclusion of which, and in the circumstances outlined at [3] above, the matter was listed for hearing before me on 27 March 2023.

8. By the applicant’s Affidavit at [4] to [11] he now says as follows:

   4. I am currently in immigration detention. I have been detained since March 2021.

   5. Prior to immigration detention, I was in jail where I served a three-year sentence, commencing on 17 March 2018.

   6. While I was living in the community, I was able to afford private legal representation. This was no longer the case after I entered jail. Although the IAA made its decision on 6 June 2018, I did not know about the decision for the whole time I was in jail. In the second half of 2018, I wanted to contact the lawyer that represented me at the IAA but I did not have her details or number. I also thought I would have to pay this person again, and I could not afford to. 

   7. While I was in jail, a friend in jail told me about Refugee Legal. I put Refugee Legal on my jail phone list. As such, I was able to contact Refugee Legal. They sent me a fax (to jail) on 2 January 2019 (annexed as Annexure MD1-2). I signed the documents they sent me, and I believe that I sent the documents back to them. They contacted me again on 6 June 2019 (correspondence annexed as Annexure MD1-3). After this June 2019 contact, however, a lawyer there said he could not help me at the time because I was in jail. He advised me to contact him once I was transferred to immigration detention. I was surprised as I thought that Refugee Legal would have told me they could not help me while I was in jail during the initial contact in January 2019.

   8. From June 2019 until March 2021, I did not think there was any other legal assistance available as I was in jail. I thought I had to wait until I was in immigration detention and my criminal matter was finished, as Refugee Legal had told me.

   9. I was detained in March 2021. On 28 April 2021, I discovered I had been refused by the IM when I contacted Refugee Legal, who referred me to Victoria Legal Aid (VLA). I do not know why Refugee Legal could not help me at that time. A VLA lawyer explained how I could contact the IM to request a status update, and the IM subsequently emailed the outcome to me (annexed as Annexure MD1-4 is a case file note from the IM of this call). I showed the IM Decision to my fellow detainees because my reading English was not good enough for me to understand it by myself. It was only then that I understood that the IM had upheld the decision to refuse my application for a protection visa. 

   10. I called VLA again. The lawyer from VLA explained that he couldn't represent me in Court, but he could help me prepare the documents to lodge myself. 

   11. On 12 August 2021, I lodged an unwitnessed affidavit with the Federal Circuit and Family Court of Australia (FCFCA) without legal representation, seeking an extension of time for judicial review of the IM Decision (affidavit annexed as Annexure MD1-5). This was dismissed on 11 March 2022 (orders annexed as Annexure MD1-6).

9. The grounds of application for extension of time in the second EOT application[2] are:

   1.The Applicant has been in immigration detention since March 2021. Prior to that the Applicant was in jail (since 17 March 2018). The Applicant has not been in the community for almost exactly five years. As such, for the last five years the Applicant has had no capacity to earn an income. The Applicant has no savings.

   2.The evidence shows that the Applicant attempted to engage pro bono legal presentation since at least the beginning of 2019.

   3.The Applicant only became aware of the existence of his current pro bono legal representatives on 3 March 2023.

   4.There is no prejudice to the Respondents.

   [2] Which is now encapsulated in the Amended Application

10. If time were to be extended the applicant seeks to raise the following grounds of review (omitting particulars, errors in original):

    1.The Immigration Assessment Authority (IAA) committed jurisdictional error in that if failed to consider a clearly articulated submissions made by the Applicant in relation to the risk of harm he would face if returned to Sri Lanka.

    2.The IAA committed jurisdictional error in that it failed to assess the Applicant’s credibility in a legally reasonable way.

    3.The IAA committed jurisdictional error in failing to consider whether to exercise its power in s 473DC(1) of the Act to invite the Applicant to attend an interview.

    THRESHOLD ISSUES

    Estoppel

11. As has already been outlined above, when the matter first came before me for the injunction hearing there arose a question as to whether the applicant could bring a second extension of time application.  Some time was required to enable the parties to consider and prepare their respective positions and to assist the Court. 

12. Whether or not a second application in relation to a cause of action is precluded ordinarily turns on whether various estoppels apply, or whether said application is otherwise an abuse of the Court’s processes.  The aforementioned estoppels, namely res judicata (cause of action estoppel), issue estoppel and Anshun[3] estoppel were discussed in Tomlinson v Ramsey Food Processing Ltd (2015) 256 CLR 507 by French CJ, Bell, Gageler and Keane JJ where at [22] their Honours said (citations omitted):

    Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as “cause of action estoppel”. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as “issue estoppel”. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”. The third form of estoppel is now most often referred to as “Anshun estoppel”, although it is still sometimes referred to as the “extended principle” in Henderson v Henderson . That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a “true estoppel” and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

    [3] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

13. At the injunction hearing, it was contended for the applicant that because an application for extension of time is generally considered as being interlocutory, there was no bar to the applicant bringing the second EOT application.  Of course, applications for extension of time arise across jurisdictions and in an array of procedural and statutory contexts.  The statutory context of an application for extension of time is relevant if there is some feature of it which might differently inform the question of whether (subject to appeal) it finally determines the rights of the parties, that being generally accepted as the distinguishing feature between interlocutory and final judgments: see Carr v Finance Corporation of Australian Ltd (No 1) (1981) 147 CLR 246, Hall v Nominal Defendant (1966) 117 CLR 423 and Re Golding (2020) 384 ALR 204 per Nettle J at [6].

14. In the migration jurisdiction it is therefore relevant to have regard to s 476A(3)(a) of the Act which provides:

    (3) Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

    (a)  a judgment of the Federal Circuit and Family Court of Australia (Division 2) that makes an order or refuses to make an order under subsection 477(2);

15. It is well-established that, by reference to the limitation in s 476A(3) of the Act, the only recourse an applicant has to challenge a decision of this Court refusing to extend time under

    
    

    s 477(2) of the Act in the Federal Court, is to make an application for judicial review under

    
    

    s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act): MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478 at [18] per Tracey, Perry and Charlesworth JJ citing Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 at [11] per Rares, Perram and Wigney JJ. As such, it might be thought that s 476A(3)(a) evinces an intention by the legislature to bring extension of time proceedings in the migration jurisdiction of this Court to a more final conclusion, without any further recourse.

16. Towards the end of the injunction hearing, reliance was placed for the applicant on the decision of BDQ16 v Minister for Immigration [2017] FCCA 703 per Judge Nicholls (BDQ16) to assert that notwithstanding s 476A(3) of the Act, extension of time applications in this Court’s migration jurisdiction are interlocutory. In BDQ16, which is factually similar to the instant case, his Honour thoughtfully and thoroughly set out reasons as to why a decision to refuse time under s 477 of the Act might be more properly construed as being final, such that a second application could not be brought.

17. However, his Honour ultimately found the following at [63] to [64] (original emphasis from BDQ16):

    However, as powerful as the Minister’s arguments, and what is set out above may appear, for current purposes, they do not outweigh the one more powerful and compelling argument put by the applicant. That is, that there is Federal Court authority that explicitly states that an order by this Court refusing an extension of time pursuant to s 477(2) of the Act is interlocutory.

    In BZAGD v Minister for Immigration and Border Protection [2016] FCA 670 (BZAGD) at [13], Rangiah J stated:

    The applicant has filed both a notice of appeal and an application for leave to appeal in this Court. The first application before the Federal Circuit Court was to set aside the notice of discontinuance, and the second was an application for extension of time to file the second application for review. Both applications were dismissed. The orders of the Federal Circuit Court were interlocutory, so that leave to appeal is required. The factors relevant to whether a grant of leave to appeal should be made are, principally, whether the decision from which leave to appeal is sought is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice would result if leave were refused, supporting the original decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398 to 399.

18. It was based on an initial reading of BDQ16 (to which the Court was referred by the applicant late in the injunction hearing) and in the absence of contrary authority or submissions from the Minister’s solicitor, that it appeared to the Court there may be a sufficient threshold question for determination that the injunction should issue.  A more detailed consideration of BDQ16 reveals that it may not be as definitive as contended for by the applicant (at short notice) on that occasion, or first thought.

19. As will be understood from the passage of BDQ16 set out at [28] above, it turned upon BZAGD v Minister for Immigration and Border Protection [2016] FCA 670 (BZAGD).  In BDQ16, the Minister had sought to distinguish BZAGD by submitting that the use of the word “interlocutory” in respect of the extension of time application, had not been fully considered by the Federal Court. 

20. In BZADG, the applicant had filed an application for extension of time, and subsequently discontinued it.  The applicant later commenced fresh extension of time proceedings before then filing an application in a case (as such an application was then known) in the first proceedings, seeking to have his Notice of Discontinuance set aside.  The primary Judge dismissed the application in a case, and then the second extension of time proceeding.   As such, in BZADG at [13] the Federal Court was discussing what mechanism was appropriate to bring each of the dismissal orders before the Court, the applicant having filed both a Notice of Appeal as well as a Notice of Leave to Appeal.  It is uncontroversial to say that dismissal of an application in a case in this Court was an interlocutory application and therefore leave would have been required under Part 35 of the Federal Court of Australia Rules 2011 (Cth) (FCA Rules) to appeal the decision dismissing the application in a case regarding the Notice of Discontinuance. However, to the extent that the Federal Court was suggesting that refusal of the second application for extension of time could also be brought under Part 35 of the FCA Rules then (by reference to s 476A(3) of the Act) this may, respectfully, have been unsound. Accordingly, a bare statement that such an application was interlocutory for the purpose of mistakenly suggesting it should the subject of an application for leave to appeal, where such an application was undoubtedly precluded by s 476A(3) of the Act may also, respectfully, be unreliable. As such, and again respectfully, it may therefore have been unsafe for Judge Nicholls to rely upon BZADG for the relevant proposition, instead of distinguishing it in the manner contended for by the Minister in BDQ16 at [67] to [71].

1. Whether, with the greatest of respect to Judge Nicholls, his Honour may have been wrong in BDQ16, and whether or not s 476A(3) should be considered as evincing a legislative intention that an application for extension of time in a migration proceeding in this Court is intended to finally determine the rights of the parties is not something I need to determine in the present case. That is because, ultimately, the first respondent did not contend that this Court was without power to hear the second EOT application, albeit while not conceding that it is because an application for extension of time under s 477 of the Act is, necessarily, interlocutory. The issue remains potentially live for determination in a future proceeding. I also record that the Minister has, by the written submissions filed in relation to the second EOT application, formally reserved his position in relation to whether the first judgment was interlocutory, expressly by reference to the matters discussed in BDQ16 at [35] to [62].

2. The Minister also does not resist the application on the basis of an estoppel.  Rather, and for the purposes of this case, the Minister resists the second EOT application on the basis that it should be found by this Court to be an abuse of process. 

   Abuse of process

3. Rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) provides:

   13.13  Disposal by summary dismissal

   The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

   (a)  the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

   (b)  the proceeding or claim for relief is frivolous or vexatious; or

   (c)  the proceeding or claim for relief is an abuse of the process of the Court.

4. Rule 13.13(c) of the Rules is relevantly identical to r 26.01(d) of the FCA Rules, in respect of which rule White J observed the following in Matson v Attorney-General (Cth) [2021] FCA 161 at [66]:

   The categories of abuse of process which may be encompassed by r 26.01(d) of the FCR are not closed. However, as noted by McHugh J in Rogers v R [1994] HCA 42; (1994) 181 CLR 251 at 286, “abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the Court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the Court’s procedures would bring the administration of justice into disrepute”. Earlier, at 256, Mason CJ noted that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other parties to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute.

5. In Walton v Gardiner (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ explained that:

   [P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and are oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock … as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.

6. In Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 109 (Bernard) per Jackson J, the Court found that in the context of an application for removal a second application was an abuse of process, saying as follows at [4] to [6]:

   [4] The application which McKerracher J dismissed was an interlocutory one, so the dismissal created no absolute bar to Mr Bernard making a similar application again: DA Christie Pty Ltd v Baker [1996] 2 VR 582 at 601–603; 606, 610–611. But the importance of finality in litigation, along with the efficient use of the resources of the court and of litigants, mean it is not appropriate to entertain such a renewed application without good reason. As Heydon JA said in Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 at [72]:

   The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker … at 602-603 — the risk of conflicting decisions, the unnecessary vexing of respondents, judge shopping and the diminution of certainty in the conduct by respondents of their affairs — and others — damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily — are evils which each court in its individual discretion will rightly strain to avoid.

   [5] In P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413; (2009) 255 ALR 466, Goldberg J surveyed the authorities in relation to attempts to obtain interlocutory orders that had been the subject of a previous application. At [40] his Honour identified two divergent views as to the circumstances in which a court will entertain a second interlocutory application in such circumstances: one that has been called a strict view; and another that has been described as a liberal view. But he did not find it necessary to decide which to follow in the case before him. Rather, at [49], he said:

   I consider that for present purposes in order for the applicants to satisfy the threshold issue they need to persuade me that since the order I made on 2 November 2007 and the decision of the Full Court, one or more of the following factors has occurred or is satisfied:

   (a) there is new material or new evidence which was not available, or reasonably available, to them at the time the orders were made on 2 November 2007 and 4 July 2008;

   (b) there has been a material change in the circumstances since those orders were made;

   (c) there are exceptional circumstances which warrant re-consideration of the matter, the subject of their notice of motion; and

   (d) as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter, the subject of their notice of motion.

   [6] This approach has been applied subsequently by other judges of this court: see for example Food Channel Network Pty Ltd v Television Food Network, GP [2010] FCA 372 at [16] (Jagot J); and Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 2) [2015] FCA 272 at [44] (Reeves J). I take the same approach here, pausing only to add that I agree with Reeves J’s observation in Adata that in addition to the considerations above, the question must also be determined with regard to the overarching purpose of the civil practice and procedure rules as expressed in s 37M(1) of the Federal Court of Australia Act 1976 (Cth), to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

7. It can be accepted that making a second application is not, in and of itself, an abuse of process: see Nominal Defendant v Manning (2000) 50 NSWLR 139 (Manning) per Heydon JA at [71]. However, that does not mean there is a carte blanche approach to manifold applications of the same kind: see National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 at [17] per Palmer AJA (Mason P and Santow JA agreeing) and Tran v Singh [2019] FCA 70 at [24] per Thawley J.

8. For the Minister it was contended that, while subject to a question of degree, the features of this case should be seen as bringing the law into disrepute.  Those features were said to include that the matter had already been argued and determined before the first primary Judge, the Minister was being put to the effort and (public) expense of resisting a second application and Court resources were again being deployed to hear the second EOT application.  The Minister submitted that the fact that the applicant was not represented before, and is represented now, was the most significant feature of the case in considering abuse and, as such, the question of abuse of process may turn upon the Court’s assessment of the applicant’s explanation for his delay in bringing the second EOT application.

9. The Minister also contended that there was a collateral purpose in the applicant bringing the second EOT application.  While acknowledging that the applicant in the present case would not receive a bridging visa contingent upon the commencement of the second EOT application, the Minister says it follows from the evidence given by the applicant’s Affidavit that he was particularly motivated to bring the second EOT application upon being issued with notice of his impending removal from Australia.  The Minister contended that the applicant’s evidence was that, when pressed by the circumstances of his imminent removal, he moved swiftly and successfully to obtain legal representation, such that it was not really plausible (as is submitted for the applicant) (see [66] below) to say that he had simply been “lucky” to obtain such assistance.  The Minister says that the whole tenor of the applicant’s evidence is that whatever steps he may have taken previously, were not of the same magnitude as the steps he took on receiving a notice of his impending removal.  The Minister submitted that if the applicant’s concern is simply to stop his removal, rather than any particular view about the legality or otherwise of the Authority’s decision, this is an abuse of the Court’s processes.  In this regard, the Minister placed emphasis on [15] of the applicant’s Affidavit where he said:

   I had been in detention since March 2021 and don't understand why I am being deported now.

10. The Minister contended that the applicant could not have been taken by any particular surprise by receiving notice of his impending removal from Australia, because he was in immigration detention, had previously been refused by the Authority and also refused Ministerial intervention.   The Minister contended that even if the Court were to accept that the applicant genuinely held the view that he might stay in immigration detention indefinitely, it was hard to see how that could be a reasonably held position.  On any view, it is said that the applicant ought to have anticipated the possibility of his removal and not kept his best efforts to obtain representation or advice until he was about to be “put on the plane”.

11. The Minister also emphasised that by reason of the public funding of both the Courts and the Minister’s legal expenses, the community at large is burdened by the second EOT application and that community members may ask why such an exercise were being permitted.

12. For the applicant it was said that the Minister had not in fact advanced any proper basis upon which the second EOT application could be considered to be an abuse of process.  Further it was contended that in the absence of the Minister not advancing an Anshun estoppel defence (by reference to an acknowledgement by the Minister that the applicant was unrepresented before the first primary Judge)[4], then it is no longer available to the Minister to assert that the second EOT application is an abuse.  I reject the latter contention.  As was made clear by the High Court in Walton v Gardiner (supra) and Tomlinson (supra) at [25], abuse of process is a broader and more flexible concept than estoppel, and can arise notwithstanding that an estoppel defence may not be available.

    [4] Minister’s written submissions filed 24 March 2023 at [14]

13. In relation to collateral purpose, the applicant contended that once it is accepted he is not barred from making a second application, it necessarily follows as being accepted that collateral benefits attending that application will arise in a migration context.   While accepting that any collateral benefits which arise from the making of the second EOT application were not irrelevant considerations for the Court, it was submitted for the applicant that such a benefit would not outweigh the interests of justice being served by the applicant having his second EOT application determined, in circumstances where he risks being returned to a risk of harm: see Pearson v Minister for Home Affairs [2022] FCAFC 203 at [55] per Allsop CJ, Rangiah and SC Derrington JJ.

14. If it is the intention of the Minister, or the Parliament, that multiple extension of time applications should be foreclosed in the migration jurisdiction[5] then such an absolute bar ought be more clearly articulated by the Act. By reference to the publically-funded resources of the Court, the significant volume of migration applications in the Court and the overarching purpose encapsulated in s 190 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (and s 37M of the Federal Court of Australia Act 1976 (Cth) (see Bernard at [4] per Jackson J citing Manning at [72] per Heydon JA)) there may be sound public policy reasons to do so. In BDQ16 (supra) Judge Nicholls observed at [62] that:

    If the order were to be seen as interlocutory, there is nothing to prevent any unsuccessful applicant for a protection visa from making repeated, and theoretically infinite, Applications in a Case to this Court, and thus prolonging stay in Australia indefinitely by this device. 

    [5] See the Explanatory Memorandum to the Migration Legislation Amendment Bill No 2 2008 (Cth) at [113]

15. It is a matter of moment that as the law presently stands, applicants in the migration jurisdiction who file out of time, may theoretically do so unendingly and potentially be in a more advantageous position than applicants who comply with statutory time limits (see [48] below). 

16. Consideration of the merit of the proposed grounds of review in relation to whether the second EOT application was an abuse of process, bears some similarity to whether or not to grant leave to raise a fresh ground on appeal.  Sometimes, the basis for why the ground is sought to be newly raised is that it was simply not conceived of at an earlier date (either by reason of a lack of representation, or different representation).  Such cases may require consideration of whether the change in circumstances or any express forensic decision to not raise a ground warrants leave being granted.  Then there will be cases in which a ground was not previously available because there has been a change in the law. 

17. It is uncontroversial to observe that jurisprudence in the migration jurisdiction can evolve rapidly.  As such, there may be situations in which the law changes such that a jurisdictional error not previously available to raise, is now extant.  While the present case is not one in which the applicant sought to raise grounds which were simply unavailable as a matter of law previously, the scenario does highlight a particular unfairness arising from the ability of an applicant to bring a second extension of time application in this jurisdiction.  That is this: if there is no finality in the refusal of an application for extension of time, such that an applicant is able to make further applications when the law changes, then a person who fails to comply with the statutory time limits can be in a more advantageous position, at law, than an applicant who did file within the statutory time frame, and whose matter was therefore dealt with to finality.  Such a situation seems inequitable to say the least.   

18. Unless or until such an absolute bar is established, then the predicament of this Court is that where an applicant brings a second application for extension of time which, on its face, is not relevantly identical to the first which has already been dismissed (such that it can summarily be determined as an abuse of process) the Court will need to hear and (in essence wholly) determine the application in order to ascertain whether it is in fact an abuse of process.  So much follows from what was contended by the Minister in saying that whether the Court could be satisfied in this case that the second EOT application was an abuse, would turn upon the level of satisfaction as to the applicant’s explanation for its re-agitation.  The same will apply where one of the relevant factors which is said to distinguish the second application from its antecedent is that new proposed grounds of judicial review are included.  The position in which it leaves this Court, and the burden it places on public funds and resources is regrettable, but is something exclusively within the purview of the Parliament, and not this Court, to limit. 

19. Accordingly, in the circumstances of this case, the Court will need to determine the second EOT application in order to fully assess whether, in context, it is an abuse of process. 

    EXTENSION OF TIME

    Relevant principles

20. Section 477(2) of the Act empowers the Court to extend the 35 day time limit imposed for applications to this Court, if satisfied that it is necessary in the interests of the administration of justice to do so. Section 477(2) does not, itself, prescribe factors which mandatorily fall for consideration in determining whether to exercise that discretion: see BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 per Logan J at [24]. The Court is required to evaluate all of the relevant circumstances and decide if it is satisfied that the extension is necessary in the interests of the administration of justice: see BTI15 (supra) per Jagot and Halley JJ at [40]. In so doing the following matters generally arise for consideration:

    (a)the length of delay;

    (b)the explanation for the delay;

    (c)balancing of the interests of the parties, namely the relative prejudice to the Minister (and public interest) as well as the consequences for the applicant if time were not extended; and

    (d)whether the proposed substantive grounds have a reasonable prospect of success, with that assessment to be (usually) taken at a reasonably impressionistic level, such that they warrant time being extended in order to be determined on a final basis: DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246, MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585 at [62] per Mortimer J (as her Honour then was), Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 at [7] to [9]), BTI15 (supra) per Logan J at [25] to [26] and Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 403 ALR 604 at [16] to [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ. It is accepted there are some cases in which a closer examination of the merits is appropriate: see Katoa (supra) at [18].

21. When examining the relative merits of a proposed substantive application at an impressionistic level the standard of assessment, whether described as being arguable, reasonably or sufficiently arguable or having a reasonable prospect of success, is a low bar: DHX17 (supra) at [76] per Collier, Rangiah and Derrington JJ, SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [47] and Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348 to 349 per Wilcox J.

    Length of delay

22. The formulation of the length of delay in this matter is not without its complexities (conceptually, not mathematically).  On a strict view, the delay might be taken to be the period from the last date to seek review of the Authority’s decision until the second EOT application was filed (6 March 2023).  That is a period of 1,699 days (or 4 years, 7 months and 23 days).  Another formulation might be the period of time from when the applicant in fact found out about the Authority’s decision until 6 March 2023: see DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 564 (DZW17) at [125] to [126].

1. While the Court Book demonstrates that the applicant was represented at the time that the Authority made its decision, and said decision was notified to his representative (in her capacity as his authorised recipient), the applicant does not expressly claim that he was not notified of the decision by his representative.  The height of the applicant’s evidence before the first primary Judge was that he was in prison “and [does] not recall ever being notified”[6] (emphasis added).  The applicant has been consistent in saying that the first time he became aware of the Authority’s decision on was 28 April 2021. For the reasons just outlined, this does not preclude the possibility (even on his own version of events) that the applicant was notified but, for whatever reason, did not take notice of the decision.  There is no indication, unlike in DZW17, that the reason the applicant did not discover the Authority’s adverse decision was because that information was deliberately withheld from him by his representative. 

   [6] First judgment at [15(b)]

2. A further formulation might be consideration of the period of time between the refusal of the first EOT application and the bringing of the second EOT application.  Finally, there is also a question in this matter as to whether the formulation might be, or at least take account of, the period of time between the applicant having been refused Ministerial intervention and making the second EOT application. 

3. In the circumstances of this case, each of the following periods is relevant in one sense or another (also by reference to the question of whether the second EOT application is an abuse of process) to the chronology of events:

   (a)by reference to the date of the Authority’s decision (6 June 2018), any application to this Court ought to have been made on or by 11 July 2018.  Accordingly, the second EOT application is formally 1,699 days (or 4 years, 7 months and 23 days) out of time. 

   (b)the period between the first primary Judge dismissing the first EOT application (11 March 2022) and the making of the second EOT application (6 March 2023) is 360 days (or 11 months and 23 days); and

   (c)the period between the applicant being notified of his impending removal from Australia (1 March 2023) and the making of the second EOT application is 5 days. 

4. A delay of over 4.5 years to make an extension of time application to the Court is extraordinary.  Even the delay of almost one year between the refusal of the first EOT application and the making of the second EOT application is of a significant length.

5. In terms of what, if any, impact the intervening application for Ministerial intervention might have on the consideration of delay, judicial views have varied in the past two decades in the migration jurisdiction as to whether this is (or could ever be) a valid explanation for not pursuing judicial review. Cases in which pursuit of Ministerial intervention has been found to be a satisfactory explanation for the delay include: SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1816 at [11] per Graham J, SZFGO v Minister for Immigration & Citizenship [2008] FCA 1478 at [17] to [21] per Edmonds J, Hui v Minister for Immigration [2011] FMCA 486 at [29] to [30] per Smith FM, Kaur v Minister for Immigration and Citizenship [2010] FMCA 634 at [58] to [72] per Barnes FM (as her Honour then was) and MZYII v Minister for Immigration [2011] FMCA 193 at [21] per Riley FM (as her Honour then was). Conversely, there is also a line of cases in which the election to pursue Ministerial intervention rather than seeking judicial review was found to indicate that the applicant had abandoned the right to seek review of the Tribunal’s decision: see Daniel v Minister for Immigration & Multicultural and Indigenous Affairs (2004) 205 ALR 198 at [14] per Goldberg J and the cases cited therein.

6. Ultimately the question of whether an application for Ministerial intervention is a factor sufficient within the context of a case to explain a delay in seeking judicial review (or other relevant relief), in particular such that it would also act to ‘stop the clock’ in the counting of a period of delay, must turn on the facts and circumstances of the case.  In the instant proceedings it is not possible to make any particular assessment of relevance of the Ministerial intervention application to the delay, because there is nothing before the Court to inform when the request was refused. 

7. However constituted, the periods of delay referred to at [57] above are of such significance that they weigh heavily against the granting of an extension of time. The longer the delay, the more persuasive the explanation for it needs to be: see Jess v Scott (1986) 12 FCR 187 and Tran v Minister for Immigration & Border Protection [2014] FCA 533 per Wigney J at [38]. A similar observation was made by the first primary Judge: first judgment at [22].

   Explanation/s for delay

8. The first primary Judge at [20] summarised the applicant’s explanation for delay as advanced before her Honour as:

   … comprising essentially three elements: (1) he was in prison when the Authority made its decision and does not remember ever being notified; (2) he contacted his previous representative but could not engage them as he has no income or money; and (3) he first discovered the Authority had made its decision on 28 April 2021 and lodged his application on 13 August 2021.

9. In essence, the same explanation is advanced before this Court, obviously with an additional chronology for matters post-dating delivery of the first judgment.  Some additional detail is advanced by the applicant’s Affidavit.  In particular, by Annexures “MD1-02” and “MD1-03” thereto, the applicant has provided documentation which shows interactions between himself and “Refugee Legal” and Victorian Legal Aid in January 2019 and June 2019 respectively.  The applicant claims by [7] of his Affidavit that a lawyer at Victorian Legal Aid told him that they could not assist him because he was in jail at the time and to revert once he had been transferred to immigration detention.  There is no documentation to corroborate the assertion that the applicant was so advised. 

10. To the extent that the applicant’s explanations for delay have generally (and consistently) turned upon challenges faced by him in obtaining legal representation, these are circumstances which are not uncommon among migration applicants to this Court, including many who do commence and prosecute their proceedings in a timely way.  It is accepted that the applicant took some steps while in jail and in immigration detention to occasionally seek assistance from lawyers and migration agents.  That those steps were not as vigorous as they might have been, or especially successful, does not (in and of itself) explain the considerable periods of delay nor excuse them in a jurisdiction in which there is no right to legal representation: see AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 at [51] per Flick, Griffiths and Perry JJ and SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [4] per Gyles J.

11. Turning specifically to the period of delay between the refusal by the first primary Judge of the first EOT application, and the making of the second EOT application, I find as follows. 

12. The applicant, having been refused by the Court does not claim to have been unware of said refusal.  In fact, within a very short period of time he sought Ministerial intervention.  The applicant acknowledges by [14] of his Affidavit that at a certain point, about which he cannot be specific, he found out the Ministerial Intervention application had been refused.  The applicant also provides emails (Annexure “MD1-07”) which show some attempts to contact legal service providers for asylum seekers, albeit the emails are not particularly informative as to the nature of assistance the applicant was seeking, such that they do not contribute meaningfully to the explanation for delay. 

13. What is apparent however, is that from the date upon which the applicant received notice of his impending removal from Australia, he swiftly securely legal representation.  As has been noted above, it was submitted for the applicant that the Court should not infer that, because when sufficiently motivated the applicant had been successful in obtaining legal representation, this meant that he had not been especially diligent beforehand.  For the applicant it was contended that he had simply been “lucky” to have found his current solicitors.  The applicant is certainly fortunate to be represented by lawyers of their calibre.  However, based on the sparse material before me, I am not satisfied that the applicant’s explanations for why he was unable to retain legal representation, or more specifically, the fact that he was unrepresented until March 2023 is a sufficient explanation for the delay in this case. 

14. Of particular significance is the timing of what prompted the applicant to seek representation and bring the second EOT application.  Namely, his impending removal from Australia.  While it was contended for the applicant that his not being removed from Australia was a mere collateral benefit arising from the second EOT application, on the material before me (and in particular the applicant’s Affidavit), I am satisfied that the applicant has sought to bring the second EOT application in order to (initially) prevent and (otherwise) delay his removal from Australia.  Taken in combination with the respective periods of delay, and the chronology of the matter, this weighs heavily against time being extended.  It is also a significant factor relevant to whether the second EOT application is an abuse of process. 

    Prejudice

15. Absence of prejudice to the opposing party is not itself sufficient or capable of supporting a conclusion that an order for extension of time should be made: see Hunter Valley Developments (supra) per Wilcox J at 349 citing Lucic v Nolan (1982) 45 ALR 411 at 416, Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 519 per Lockhart J and Muzammil v Minister for Home Affairs [2019] FCCA 1564 at [46] per Judge Kelly.

16. It is well established in the context of such applications that there is a significant public interest in the finality of administrative decisions (see Re Commonwealth; Ex Parte Marks (supra) at [15] to [17] per McHugh J).   An application for extension of time necessitates expenditure of public funds in circumstances where there is a reasonable expectation that the matter was at an end.  That is a fortiori in circumstances where the applicant has already brought such an application (which has received full judicial attention and determination) and the applicant waits almost another year to seek to make a further application for extension of time. 

17. The Minister claims to be prejudiced in terms of the finality of litigation, as well as the public resources which are necessarily utilised by the Minister in resisting the second EOT application for extension of time.  In this regard, but particularly for a second application for extension of time, there is prejudice to the Minister if the time were to be extended.  However, I am equally satisfied that such prejudice could be met by a costs order in respect of the extension of time application, even if the applicant were successful in having time extended.  In my view, the circumstances of a case such as this, are ones in which costs might not follow the event of an applicant being successful in having time extended, even if ultimately successful on judicial review.  Accordingly, if the Court were to find that the interests of the administration of justice were served by time being extended, and that the second EOT application was not found to be an abuse of process, I would hear the parties as to costs of the second EOT application which may, if awarded to the Minister, somewhat alleviate the prejudice to him and the public.

18. The question of prejudice in assessing abuse of process is a more finely balanced one.  This is because while any prejudice to the Minister (which affects the public purse) might be alleviated by a costs order, it does not account for the Court time and resources which are devoted to a second application for extension of time.  Those resources which could be utilised by other parties before the Court are incompensable to the public.  In this way, and relevant to questions of public interest in relation to whether an application is an abuse of process, the question of prejudice weighs in favour of the Minister. 

19. I acknowledge the applicant’s claim that there are significant consequences to his removal.  Accordingly, and subject to the possible costs consequences discussed in paragraph [70] above and reserving the position in respect of abuse of process as discussed at [71] above, I consider prejudice in this matter to weigh as a neutral factor in whether it is in the interests of the administration of justice to extend time. 

    Merits

    Ground 1

20. The first proposed ground of review alleges that the Authority failed to consider “clearly articulated submissions” made by the applicant that two of his uncles had been falsely suspected of being members of the LTTE and killed in 2007 and 2008 respectively.  For the applicant, it is contended that his overall claim to fear harm in Sri Lanka by reason of being perceived to be associated with the LTTE had within it a claim (squarely arising on the materials) that his family connection to the uncles was a key part of that fear of harm.

21. In support of this ground the applicant relies on the following parts of the Statutory Declaration made by him which accompanied his visa application (CB 79 to 81) (anonymisation added):

    [56]  Two of my uncles were abducted by a white van and killed.  They were not LLTE, just civilians,  They were targeted because their relatives were from Vanni which was an LTTE area.  The SLA suspected they were involved with the LTTE as well.  One uncle [A] …was taken in October 2008.  My other uncle [B] …was taken in 2007.  I attached newspaper articles about my uncle [A’s] death – his body was found at [NAME] railway station after being abducted by a white van.  He had been tortured.  Parts of his body had been removed. 

    …

    [58]  I was afraid that I would be targeted and tortured or disappear.

    …

    What I fear may happened to me in Sri Lanka

    [63]  I am afraid that the CID and Army will arrest me, beat me and torture me or kill me because they believe I was with the LTTE.

    …

    Who I think may harm/mistreat me in Sri Lanka and why.

    [69]  I believe that the CID and the Sri Lankan army will harm me if I return to Sri Lanka as they will believe I supported the LTTE.

    …

    Do I think the authorities of that country can and will protect me and or my accompanying family members, where applicable, if I were to go back

    [71] The authorities will not protect me because I am a young Tamil male who they believe was connected to the LTTE in the past. It is the authorities including the CID and the Army that I am afraid of.

22. The newspaper articles referred to at [56] of the applicant’s Statutory Declaration are presumed to be those at CB 120 to 121.  However, and as the Authority observed at [30] of its reasons for decision, there were no English translations provided of those documents. 

23. Next, in a submission made by the applicant’s (then) representative to the delegate (CB 148 to 162), the applicant’s claims were set out at CB 148 at [b], CB 149 at [d] and [f].  There is no reference to the fate of the applicant’s uncles in that submission as forming part of the applicant’s claimed fear of harm. 

24. When the Authority came to set out the applicant’s claims at [6] of its decision, it is true that it recorded the applicant’s assertions regarding the abduction and killing of the applicant’s uncles (CB 200, fifth bullet point), however this is to be understood in the context that the Authority basically summarised at [6] most of the events to which the applicant had made reference in his documentation.  Reliance was also placed on the Transcript (T) at page “036” (which is relevant predominantly to grounds 2 and 3) annexed to the transcript Affidavit.  That part of the Transcript shows that at the interview with the delegate the applicant’s representative stated that there would be a lot that the applicant could say about the final months of the war, and a further statement by the representative in the same interview (T036) that the applicant would not be a voluntary returnee to Sri Lanka. 

25. The Minister says that no such claim regarding the applicant’s uncles can be taken to have been so clearly articulated as a key integer of the applicant’s claims to fear harm, such that ground 1 does not have a reasonable prospect of success, even on an impressionistic basis.  I agree. 

26. In contrast to other claims relating to an imputed family profile arising from his connection to certain cousins, which the Authority rejected (CB 212 at [33]), the claims in relation to the uncles as articulated were considered by the Authority and accepted (CB 211 at [30]). 

27. A fair and contextual reading of the submissions made for the applicant in relation to his uncles, and of the Authority’s reasons in that regard shows a correlation between the two.  What is now contended for by proposed ground 1, would place enhanced significance on the events surrounding the applicant’s uncles, a gloss which does not seem reasonably available based on the materials as advanced to the delegate and/or the Authority. 

28. As such, I am not satisfied that ground 1 has a reasonable prospect of success, even taken at an impressionistic level such that it would warrant time being extended in order that the ground could be heard and determined on a final basis. 

    Ground 2

29. Grounds 2 and 3 have considerable overlap but will nonetheless be considered separately.

30. Ground 2 alleges that the Authority’s assessment of the applicant’s credibility was legally unreasonable because the Authority found the applicant had been given “every opportunity” to put his claims forward in the interview with the delegate, whereas a review of that interview reveals that to not be so. Ground 3 follows on from ground 2 insofar as the applicant seeks to allege that, in light of his having not been given a full opportunity to present his claims to the delegate, the Authority erred by failing to consider whether to exercise the power in s 473DC(1) to invited the applicant to an interview.

31. In support of ground 2, the applicant draws attention to [25] of the Authority’s reasons, which warrants being set out in full:

    The applicant was given every opportunity at his PV interview to put forward all his claims and provide further information to support his claims. The delegate had asked the applicant about what he considered gaps in the applicant’s story, as set out in his statement of claims, and asked questions to clarify those gaps. It is clear from the PV interview that having asked those questions, the applicant had provided as much information as he could in relation to his claimed experiences, in particular in relation to his forced LTTE recruitment and time with the LTTE over a 3 and a half month period in the final months of the civil war, and in relation to his subsequent experiences when the war ended at the internally displaced persons camp. Whilst the post decision submission made on his behalf raises concerns that the applicant was not put on notice regarding matters that the delegate decided weighed against the applicant’s credibility in respect of these claims, I note that the issues that have led to an adverse credibility assessment arise from the testimony given by the applicant at his PV interview when questioned about the gaps in his story. Further, I note that no further information has been provided by the applicant in relation to those issues. Having listened to the PV interview I am satisfied that the applicant was given every opportunity to provide details about his claimed LTTE involvement, having been asked a number of questions about his training with the LTTE and his claimed military service during the final months of the civil war. Having also considered the submissions made by his representative at the PV interview, and in both the post-interview submission and the post-decision submission, I am satisfied that his claims have been comprehensively presented and I have considered these in the context of the applicant’s testimony as a whole in making my findings. Although the post-interview submission contends that the delegate accepted the applicant presented as a cooperative witness, this was in relation to answering questions about his identity given some anomalies in his identity documents, and generally in relation to his testimony about his family composition and residential history, which the delegate considered indicated that he was speaking from personal experience having lived in Sri Lanka.

1. Next, the applicant relies on the transcript Affidavit.  Firstly to highlight that the expression “every opportunity” which the Authority employed twice in [25], came from the delegate where (at T044) the delegate said to the applicant:

   You went and you came back.  We know that.  So the underlying reasons – so if there is anything else that you are now at this stage of the interview, if you feel there is anything else you need to state or you haven’t said, you’ll need to put that in writing. 

   So at this point I will have to say that we have given you every opportunity to make your claims.  You have made your claims and also confirmed that there is nothing more to add. 

2. Following that statement, the delegate said there would be additional time given to the applicant to provide a further written submission.

3. The parties were in agreement that ground 2, in essence, would turn upon whether reasonable minds could differ about whether, in light of other exchanges between the applicant, the delegate and the applicant’s representative at that interview, the applicant was truly given every opportunity to present his claims.  Those exchanges can be summarised as follows:

   (a)in the early stages of the interview the delegate emphasised the importance of the applicant providing complete and accurate protection claims and noted that the interview may be the last opportunity at which to do so (T007);

   (b)the delegate referred to the applicant’s statement as being “fairly detailed” (T020), and later “very detailed” (T021);

   (c)the delegate then said that there was “not a lot of detail that I need to extract from you other than to get some clarifications.  So only answer the questions that I put to you because the story is there in the statement” (T021);

   (d)the delegate later asked the applicant if there was anything else he wished to say in relation to his protection claims but “not incidents that are peripheral to it” (T033);

   (e)towards the end of the interview, and immediately prior to it being paused for what is apparently a standard “natural justice break”, the applicant’s representative asked the delegate (presumably so as to use that break to its most useful extent) if they had any specific concerns (T034).  The delegate responded (errors in original):

   none that remain unresolved – anything, the concerts that I had would have been gaps in information, would have bene gaps in the story, gaps in my understanding, which I have asked questions to have clarified and also take account of the additional information he has provided.  I asked a few follow-up questions to get the picture and I have no issues remain unresolved or of needing clarification.

   (f)when the interview resumed the applicant was asked if there was anything the applicant wished to say in relation to his protection visa, to which he responded that his life was in danger and repeated a number of his claims (T034 to T035); 

   (g)it was at this juncture that the exchange recorded at [77] above occurred;

   (h)the delegate indicated prior to concluding that there was no specific basis upon which they were inviting the additional submission, but that the applicant had leave to provide one if desired.  The applicant’s representative sought again to have the delegate specify whether they were requiring a submission (T043); and

   (i)it was at this juncture that the statement set out at [85] above was made.

4. Having regard to the principles established in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] to [131] per Crennan and Bell JJ and Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1, I am not satisfied that proposed ground 2 has a reasonable prospect of successfully establishing that the Authority’s conclusions including that the applicant had been given sufficient opportunity to present his claims [25] (even on an impressionistic level) were not open to it on the material before it, including by reference to the delegate’s interview. I find those conclusions may be ones in respect of which reasonable minds may indeed differ and, as such, there does not appear to be a reasonable prospect of demonstrating that the Authority trespassed beyond the limits of decisional freedom available. The ground is not sufficiently arguable to warrant more detailed consideration at a final hearing. Accordingly, proposed ground 2 also does not warrant time being extended to facilitate its consideration.

   Ground 3

5. In respect of an assessment of proposed ground 3, by reason of the foregoing conclusions about ground 2 (that the Authority’s conclusions are not arguably unreasonable) there does not appear to be a reasonable prospect of establishing error by the Authority having unreasonably failed to exercise its discretion to get new information, or interview the applicant.  The threshold for establishing such unreasonableness is high (see Minister for Home Affairs v DUA16 (2020) 271 CLR 550) and even on an impressionistic level, the material before the Court does not demonstrate a sufficient argument that the Authority unreasonably failed to exercise its discretion. As such, ground 3 also lacks a reasonable prospect of success such that it being considered on a final basis is not warranted.

   CONCLUSION

6. The delay in this matter (whether taken as a whole or since the dismissal of the first EOT application) is, at least, significant.  The explanation for that delay is not persuasive and the proposed substantive grounds lack merit, even at an impressionistic level.  As such, it is not in the interests of the administration of justice that time should be extended such that the applicant’s newly proposed grounds can be considered on a final basis.  Accordingly, the second EOT application is refused.  I will so order.

7. Having now assessed the second EOT application as being unmeritorious, I also conclude that it is an abuse of process by reference to the authorities considered at [35] to [38] above.  However, the application must be dismissed on one basis alone: see SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at [14] per French J (as his Honour then was), Allsop J (as his Honour then was) and Tracey J. As I am not satisfied that it is in the interests of the administration of justice to extend time for the reasons given, I will refuse that application, following which there is no application before me to dismiss as an abuse of process. Therefore, I record my finding that it is an abuse as a formal matter only.

8. In the foregoing circumstances, there is no extant question remaining to be tried such that the injunction granted on 7 March 2023 (and extended on 27 March 2023) ought remain in place.  I will vacate that order.

9. I will hear the parties as to costs.

I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       27 April 2023