CUR23 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 344
•13 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CUR23 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 344
File number(s): BRG 591 of 2023 Judgment of: JUDGE EGAN Date of judgment: 13 March 2025 Catchwords: MIGRATION – Where there was a delay of 136 days in filing an application for review of the decision of the Tribunal – where there was no reasonable explanation provided in any affidavit for the delay – where the substantive grounds of review lacked merit and were not arguable – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), s. 65
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, r. 29.05(2)
Cases cited: MZZYV v Minister for Immigration and Border Protection [2016] FCA 957
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor
(2022) 403 ALR 604
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of last submission/s: 11 March 2025 Date of hearing: 11 March 2025 Place: Brisbane Counsel for the Applicant: the Applicant appeared in person Solicitor for the Respondents: Ms Helsdon, Sparke Helmore ORDERS
BRG 591 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CUR23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
13 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the second respondent be changed to “Administrative Review Tribunal”.
2.The Application for Extension of Time filed on 23 November 2023 be dismissed.
3.The applicant pay the first respondent’s costs of and incidental to the Application for Extension of Time fixed in the amount of $4,189.
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 EGAN
Introduction
The applicant is a citizen of the Independent State of Papua New Guinea.
On 27 May 2019, a delegate of the Minister refused to grant to the applicant a Protection Visa under the provisions of s. 65 of the Migration Act 1958 (Cth) (the Act).
On or about 3 June 2019, the applicant sought review of the decision of the delegate by the then Administrative Appeals Tribunal (the Tribunal).
On 5 June 2023, the Tribunal affirmed the decision of the delegate.
On 23 November 2023, the applicant filed an Originating Application for Review of the decision of the Tribunal. That Originating Application was filed 136 days out of time. The applicant sought an extension of time for the commencement of the proceeding.
Grounds of Review
The Grounds of Review in the Originating Application for Review filed on 23 November 2023 were relevantly as follows:
1.Reconsider medical certificate evidence with a minor typing error made by the Medical Doctor
2.New physical evidence (photos)
3.Reconsider, injury related to my attack based on medical certificate report issued by the doctor versus my assumption of the injury which I stated in the statement of claim (Right shoulder blade dislocate) when reporting to the doctor.
An affidavit filed in support of the Application for Review was as follows:
1.I have a medical certificate to submit to the court as physical evidence to support my claim. I was attacked by armed man regarding land dispute and my medical report serve as a prove. The medical certificate might have a typing error or doctors error regarding location of my attack but the doctor did the medical examination and the medical certificate was issued. I wrote in my claim that i was attacked and I dislocate my right shoulder blade, at that time of attack I was not a doctor so I wrote the claim base on how i feel and see my injured shoulder.
2.I also have a police clearance to prove as an evidence that I have no criminal record at that time of events.
3.I also have photos of my tribesman to prove as an evidence to show that they were arm and dangerous at that time of event. Which the AAT have not seen and take into consideration yet.
Note: AAT have to taken into consideration the typing error in the medical report regarding the location of attack. The location of attack was Hula but the doctor type in Taurama as the location of attack which was a misunderstanding of location. Taurama is the location of accommodation i temporary stay when going for medical check-up.
It was submitted on behalf of the first respondent that the application for extension of time should firstly be refused because the applicant failed to provide any satisfactory explanation for what was submitted to be a significant delay. It was further submitted that the grounds of review in the substantive application lacked merit, such that the Court ought not to be satisfied that it was necessary in the interests of the due administration of justice to make an order extending time pursuant to the provisions of s. 477(2) of the Act.
Relevant Considerations
In MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [13], Moshinsky J held as follows:
13. The principles applicable to an application for an extension of time are well established. The factors which the Court should take into account in determining whether to grant an extension of time include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent, albeit that the mere absence of prejudice is not sufficient: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; SZTRY v Minister for Immigration and Border Protection[2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.
Secondly, it was a mandatory requirement under r. 29.05(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 that an applicant seeking an extension of time was required to provide evidence as to why there was a delay in the filing of an application for review. That rule relevantly provided as follows:
29.05 Application for Judicial Review of Migration Decision
(1) …
(2) An application must be supported by an affidavit including:
(a) …
(b) …
(c) if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
Though not being able to point to any specific prejudice, it was submitted on behalf of the first respondent that the applicant’s alleged lack of awareness of the 35-day time limit for the filing of an application for review of the decision of the Tribunal was not a satisfactory reason for the delay.
In MZZYV at [25], Moshinsky J held as follows:
25. It is therefore unnecessary to consider the explanations put forward in relation to the delay. However, I note that the fact that a litigant is ignorant of the time frame for lodging an appeal is generally not a satisfactory explanation for the delay: see, eg, SZSDA v Minister for Immigration and Citizenship[2012] FCA 1319; (2012) 135 ALD 17 at [38]. I also note that the making of an application to the Minister to intervene will generally not constitute an acceptable explanation for delay in filing a notice of appeal: see, eg, Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 at [29] per Jessup J; MZZGC v Minister for Immigration and Border Protection[2015] FCA 842 at [15] per Mortimer J. In the present case, there was also a significant period of delay between the rejection of the applicant’s second request for Ministerial intervention (on 13 January 2016) and the lodging of the application for an extension of time (on 5 May 2016).
The second alleged reason for the delay in filing the application for review, namely the applicant requiring extra time to contact his doctor to remedy the alleged deficiencies in the medical certificate, was not an acceptable reason. The applicant could have obtained an amended medical report at any time between the handing down of the decision of the delegate in May 2019, and the holding of the hearing before the Tribunal in June 2023. The applicant failed to do so.
The Court finds that the applicant has provided no satisfactory explanation for the filing of the application for review out of time. It was a mandatory requirement that the applicant do so. In such circumstances, the application for extension of time is without merit and is dismissed.
Further, the Court finds that the substantive grounds of review lacked merit.
At [5] – [11] of its reasons, the Tribunal accurately set out the criteria for the granting of a protection visa to the applicant.
At [19] – [52] of its reasons, the Tribunal carefully set out several inconsistencies in the applicant’s claims relating to:
(a)The place at which the applicant said he was assaulted. The applicant first claimed that he was assaulted at his grandparent’s residence in Hula, which was situated some 2.5 hours drive out of Port Moresby, but the medical report obtained from the hospital recorded that he had claimed to have been assaulted at Taurama, a suburb of Port Moresby.
(b)The applicant claimed that he had been hit on the right shoulder with a piece of wood being wielded by his assailant, and that he had suffered an injury to that shoulder. The medical report, however, made no mention of any right shoulder injury. [1]
(c)The applicant claimed that after the assault he had been hiding in Port Moresby before his luckily receiving a wedding invitation from his sister and brother-in-law to attend their wedding in Cairns. When questioned by the Tribunal member about that, the applicant admitted that rather than such invitation being one which required his spontaneous acceptance, he had in fact been planning to attend the wedding for some time.
(d)Though the applicant claimed that he had gone to the Boroko Police Station to make a complaint after he was discharged from the hospital, the applicant could not explain why he had not obtained a Police report to that effect.
(e)The applicant claimed that he would suffer serious harm from his relatives if he remained in Papua New Guinea, but there was no evidence from the applicant that any of his extended family relatives were searching for him.
(f)The applicant said that he was fearful of returning to Port Moresby, but his place of birth was Madang where he grew up, and where his parents were born. Madang is a considerable distance away from Port Moresby. The Tribunal did not accept that any of the applicant’s relatives were intent on finding him and causing harm to him.
[1] See p. 261 of Court Book (CB).
The Tribunal held that the applicant was unimpressive when giving his evidence before the Tribunal. There is no reason to doubt the veracity of the Tribunal’s finding in that regard.
The Tribunal did not err in finding that the applicant was not owed protection obligations or complementary protection obligations under the Act.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The grounds for review are without merit. Such grounds were not arguable. [2]
[2] Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor
(2022) 403 ALR 604 at [4], [12], [13] and [17] – [20] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
The Court will hear the parties as to costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 13 March 2025
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