Cuw18 v Minister for Home Affairs
[2018] FCCA 1991
•23 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUW18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 1991 |
| Catchwords: PRACTICE & PROCEDURE – whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused. |
| Legislation: Migration Regulations 1994 (Cth), r.4.31. |
| Cases cited: Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 |
| Applicant: | CUW18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1509 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 23 July 2018 |
| Date of Last Submission: | 23 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 July 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Ms Sharon Sangha (Mills Oakley) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1509 of 2018
| CUW18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) to seek judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 8 February 2018. The applicant filed the application for judicial review on 21 June 2018, some 2 months and 15 days after the expiration of the 35 day period after the Tribunal’s decision as required by s.477(1) of the Act.
Legislative framework
Section 477 of the Act is as follows:
“Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
‘date of the migration decision’ means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or
(b) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5--the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7--the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca) in the case of a migration decision made by the Immigration Assessment Authority--the date of the written statement under subsection 473EA(1); or
(d) in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision. Relevantly, pursuant to s.477(2) of the Act, the Court may extend the 35 day period if the Court considers that it is necessary in the interests of justice to extend time to the applicant to seek judicial review to the decision of the Tribunal.”
Relevantly, pursuant to s.477(2) of the Act, the Court may extend the 35 day period if the Court considers that it is necessary in the interests of justice to extend time to the applicant to seek judicial review to the decision of the Tribunal.
The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established. Those principles include the length of the delay, the explanation for the delay, the presence or absence of prejudice to the respondent; and, the prospects of success of establishing jurisdictional error in the Tribunal’s decision.
In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344; SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J). In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], Mortimer J stated relevant principles that were approved by the Full Court of the Federal Court of Australia in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [21] per Tracey, Perry and Charlesworth JJ, as follows:
“63. The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]- [48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.”
The first respondent does not suggest that they would suffer any prejudice if time was extended. However, it is also well established that the mere absence of prejudice is not sufficient by itself to grant the applicant an extension of time (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344 at [21] per Wilcox J).
If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] per Murphy J; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J).
The proceeding before this Court
By application filed on 30 May 2018, the applicant applied for an extension of time to seek judicial review of a decision of the Tribunal dated 8 February 2018. In the application filed, the applicant identifies as his grounds for an application of an extension of time as follows:
“1. The applicant has misunderstanding of time limitation.
2. The applicant has been living in the remote area who has very limited access of this service.”
The application identifies the grounds for judicial review as follows:
“1. The first and second respondents have not correctly assessed the real chance of persecution to the applicant.
2. The first and second respondents have not fairly treated the applicant by giving her the opportunity to explain and provide further information.
3. The first and second respondents have bias against the applicant.
4. The first and second respondent has to consider the serious harm may occur to the applicant when she returns to her country.”
The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter. The applicant confirmed that he had attended a directions hearing before a registrar of this Court on 21 June 2018 and that on that occasion he had been given leave to file and serve, by way of affidavit, any further evidence to be relied upon and submissions in support of his application for an extension of time. The applicant was also provided at that directions hearing with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
The applicant confirmed to the Court this morning that he had not filed any documents, either in accordance with those directions or otherwise, and had no further documents to provide to the Court.
I explained to the applicant that s.477 of the Act provides that the Court may extend the 35 day period if the Court is satisfied that it is necessary in the interests of the administration of justice to do so. I explained to the applicant that, of particular significance to the Court this morning, would be the explanation for his failure to seek judicial review within the 35 day period and the prospects of success of his application for judicial review.
The applicant said he wished to give evidence about his explanation for his failure to file his application for judicial review within the 35 day time limit provided under s.477 of the Act.
The applicant was duly sworn and gave oral evidence that was different to the statements provided by him in his application. The applicant said that he had a friend who gave him poor advice.
However, the applicant agreed several times in cross‑examination that he never asked any questions about his application, that he left it entirely to his friend and that he made no inquiry as to the further conduct of his application when that friend left Australia to return to his own country. He said that he did not remember when his friend left but that it was a few months ago.
In cross examination, it was put to him that it was a very serious matter for the applicant to wish to seek judicial review of the Tribunal’s decision, to which the applicant responded that he was fooled by his friend and that he now appreciates that time limits are important.
In cross examination, the applicant was taken to the notification document of the Tribunal’s decision refusing him a protection visa and the Tribunal’s confirmation of that decision, sent to the applicant at the email address provided by the applicant on his application for review by the Tribunal and dated 9 February 2018.
In cross‑examination, the solicitor for the first respondent took the applicant to the clear statement that the applicant has 35 days after the decision is made by the Tribunal to seek judicial review of the Tribunal’s decision to affirm the decision under review. The applicant’s response was that he did not speak English and therefore could not understand it and that very few of his friends spoke English.
The applicant did not give evidence of any step whatsoever taken by him to have that document translated for him, and was not able to explain why he had not put in his explanation to this Court the explanation given today that his friends did not make him aware of the relevant time limit. It was put to the applicant that he did not take any responsibility for his application or the conduct of seeking review, to which the applicant answered, “Correct”.
In the circumstances, the applicant’s explanation for his delay in seeking judicial review in this Court is entirely unsatisfactory. The applicant gave direct evidence that he took no step and asked no question to inform himself about what steps he may take following the Tribunal’s decision.
However, even if I was to accept the applicant’s explanation as reasonable, none of the grounds for judicial review identify any error capable of review by this Court in establishing jurisdictional error on the part of the Tribunal.
In its decision record, the Tribunal noted that a delegate of the Minister for Home Affairs (“the Delegate”) made its decision on 24 February 2016 to refuse to grant the applicant a protection visa and that the applicant’s application for review of that decision by the Tribunal was lodged almost two years later, on 19 January 2018. The Tribunal noted that the applicant was not in immigration detention on the day the applicant was notified of the decision, and noted that pursuant to reg.4.31(2) of the Migration Regulations 1194 (Cth), an application for review of the decision had to be made within 28 days.
The Tribunal was satisfied on the material before it that the applicant was properly notified of the Delegate’s decision by letter dated 24 February 2016 and dispatched by email in accordance with the statutory regime. The Tribunal found that the applicant was taken to have been notified of the decision on 24 February 2016 and, pursuant to s.494C of the Act, the prescribed period ended on 22 March 2016. The Tribunal accordingly found it had no jurisdiction to conduct the review.
The first respondent read the affidavit of Anthony Gardner, affirmed 10 July 2018. Mr Gardner’s affidavit annexed a copy of a screen shot from Department of Home Affairs (“the Department”) correspondence records which indicated that on 24 February 2016, a copy of the Delegate’s decision was emailed to the applicant at the email address identified by the applicant in his visa application. The applicant’s visa application identified that all communications should be sent to him, agreed that the Department could communicate with him by email and provided an email address, being the same address to which the Department had sent its decision record.
Ground 1 asserts that the first and second respondents have not correctly assessed the real chance of persecution to the applicant.
This Court has no jurisdiction in relation to the second respondent’s decision and, accordingly, to the extent that any of the grounds refer to the first respondent, none of those complaints can be considered by this Court.
In relation to the complaint in Ground 1, in respect of the first respondent, in circumstances where the decision of the Tribunal that it had no jurisdiction was correct, the Tribunal did not have power to assess the real chance of persecution to the applicant.
Ground 2 asserts that the first and second respondents did not fairly treat the applicant by giving him the opportunity to explain and provide further information. The applicant did not lodge his application for review of the Delegate’s decision until 19 January 2018, almost two years after the Delegate’s decision, as stated above.
On 23 January 2018, before the Tribunal made its decision, the Tribunal wrote to the applicant informing him that it appeared that his application for review was not a valid application as it was lodged outside the relevant time period, and informing him that the last day for lodging his application for review by the Tribunal was 22 March 2016. The letter invited the applicant to make any comment on whether a valid application had been made and invited him to do so in writing by 6 February 2018. The letter also provided the applicant with the contact details of translating and interpreting services.
No further document was provided by the applicant to the Tribunal. It is apparent from that correspondence that the applicant had an opportunity to explain and comment and provide further evidence in relation to the issue as to whether or not the Tribunal had jurisdiction to consider the applicant’s review application, in circumstances where it was filed almost two years after the date of the Delegate’s decision.
Ground 3 asserts that the first and second respondents were biased against the applicant. The claim of bias is serious and requires evidence. It is a rare and exceptional case where bias can be demonstrated solely from the published reasons of the decision and the mere fact that the Tribunal makes a decision that the applicant does not agree with, does not give rise to an inference of bias or, by itself, suggest that the decision‑maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J; Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507). The applicant was invited to send any further information or comment on the Tribunal’s preliminary view that it had no jurisdiction and, for whatever reason, chose not to do so.
Ground 4 asserts that the first respondent has to consider that serious harm may occur to the applicant if he returns to his home country. As stated above, this Court has no jurisdiction to review the decision of the first respondent. In relation to the second respondent, for the same reasons as were given for Ground 1 above, the Tribunal, having determined that it had no jurisdiction to review the Delegate’s decision, could not consider any harm that may occur to the applicant if he was to return to his home country.
In the circumstances, none of the applicant’s grounds would appear to have any prospect of success in establishing jurisdiction error on the part of the Tribunal and none is apparent on the face of the Tribunal’s decision record. As stated above, in deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility.
In the circumstances of this case, as stated above, the application has no prospects of success and any extension of time would be an exercise in futility. The delay in filing for judicial review in this Court of more than two months is significant. Coupled with the absence of a satisfactory explanation and the lack of prospects of success, the lack of prejudice to the first respondent is not sufficient, by itself, to grant the applicant an extension of time.
Whilst I make no final finding as to whether or not the Tribunal’s decision is affected by jurisdictional error, none is apparent on the face of the Tribunal’s decision record and none has been identified by the applicant this morning. I accept that there is prejudice to the applicant in refusing to extend time to him to seek judicial review of the Tribunal’s decision, however, in balancing the interests of both parties and the overall interests of justice, I also have regard to the significant public interest in the finality of administrative decisions (see: Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [17] per McHugh J).
In all the circumstances, but particularly in light of the unsatisfactory explanation of the applicant’s delay and the prospects of success of the applicant’s application for judicial review of the Tribunal’s decision, I am not satisfied that it is necessary in the interests of justice to extend time to the applicant.
Accordingly, the applicant’s application for an extension of time is refused with costs.
I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 25 July 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Appeal
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