CWF19 v Minister for Home Affairs
[2019] FCCA 3361
•21 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CWF19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3361 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (Class XE)(Subclass 790) visa – oral application for adjournment of final hearing – application for an extension of time pursuant to section 477(2) of the Migration Act – application for adjournment refused – application for extension of time and substantive application refused. |
| Legislation: Migration Act 1958, ss.36(2), 477(1), 477(2) |
| Cases cited: AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 |
| Applicant: | CWF19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent | IMMIGRATION ASSESSMENT AUTHORITY |
| File number | MLG 2346 of 2019 |
| Judgment of: | Judge Blake |
| Hearing date: | 8 October 2019 |
| Date of Last Submission: | 8 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 21 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | None |
| Advocate for the Respondents: | Mr Cunynghame |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application filed on 23 July 2019 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
Order 1 of the Orders made on 23 July 2019 be discharged.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2346 of 2019
| CWF19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 20 June 2017 was filed in this Court on 23 July 2019 (‘Application’) by the Applicant. The application has been filed outside of the time limit prescribed by section 477(1) of the Migration Act 1958 (‘Act’). Accordingly, the Applicant also seeks an extension of time for the making of the Application.
For the reasons that follow, I have decided that the application for an extension of time in which to file the Application should be refused.
Background
The Applicant is a Sri Lankan national. He arrived in Australia on
13 October 2012 as an unauthorised maritime arrival, and attended an arrival and induction interview on 24 January 2013.
The Applicant applied for a Safe Haven Enterprise (Class XE)(Subclass 790) visa (‘visa’) on 14 April 2016.
On 2 November 2016, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa.
The matter was referred to the Authority on 9 November 2016. The Authority affirmed the decision of the delegate on 20 June 2017.
The Applicant made the Application to this Court urgently on 23 July 2019, at a time when his deportation from Australia was imminent. The Applicant also filed an affidavit in support, which annexed the Authority’s decision.
At a hearing before me on 23 July 2019, I made, among others, the following orders:
a)The Minister be restrained from removing the Applicant from the Commonwealth of Australia until further order;
b)The Applicant’s application for an extension of time and the substantive hearing if time is extended, be adjourned to 8 October 2019 at 10am for final hearing;
c)The Applicant file and serve any amended application with proper particulars of the grounds of the application, a supplementary Court Book, if any, and written submissions, 28 days before the final hearing; and
d)The Minister file and serve written submissions 14 days before the final hearing.
The Applicant was unrepresented at the hearing and was assisted by a Tamil interpreter. The Applicant did not file an amended application or any written submissions. The Applicant did, however, file two further affidavits. Both affidavits were affirmed on 1 October 2019 and filed with the Court on 2 October 2019. The first affidavit deals with, among other things, reasons for the delay in making the Application (‘First Affidavit’). The second affidavit sets out information or contentions as to why the decision of the Authority is wrong (‘Second Affidavit’).
The Application for an adjournment of the hearing
At the commencement of the hearing, the Applicant sought that the hearing be adjourned. The adjournment was sought on the basis that the Applicant wanted additional time to engage a lawyer. I refused the application for an adjournment of the hearing. My reasons for doing so are as follows.
The reasons for the Applicant seeking the adjournment are set out in the First Affidavit. The Applicant expanded upon these reasons during the hearing. Three substantive reasons were advanced by the Applicant in support of the adjournment application.
First, the Applicant submitted that he required the adjournment because he needed more time to engage a lawyer. The First Affidavit records the Applicant’s attempts to engage a lawyer in 2017, following the decision of the Authority. No information is provided about his attempts to obtain a lawyer during 2018 or the first half of 2019. Further, when the matter was before me on 23 July 2019, it was set down for trial. The Applicant has been on notice since at least that time of the date of this hearing. Despite this, he appeared at the hearing without representation.
From the bar table, the Applicant indicated that he had sought to engage lawyers following the hearing on 23 July 2019, but that the lawyers he had sought to engage had not taken up his case. When I asked him whether he had taken any step to speak to another lawyer when this occurred, he said that he had not had time to do so.
In addition to this, the Applicant indicated that he had issues paying for lawyers and had sought free representation, but was unable to obtain it. The Applicant’s inability to pay for lawyers is also set out in the First Affidavit.
When all of this is considered, I am of the view that the Applicant has had ample opportunity to obtain legal advice. It is not a lack of opportunity or time which has prevented the Applicant from obtaining legal advice, but, rather, a lack of money. Unfortunately for the Applicant, that is not a basis on which to seek an adjournment.
The next issue raised by the Applicant in support of his application for an adjournment was his wife’s ill-health. While I understand and accept that the ill-health of his wife may cause the Applicant concern, I do not accept that as a reason to adjourn the hearing. The Applicant’s wife, on his own admission, has been unwell since 2017. The only material in evidence before me in relation to the wife’s ill-health are medical notes produced in 2018. The Applicant himself indicated that there is a document or plan for the management of his wife’s health for the next five years. He did not produce any such document or plan. On any view of this history, the ill-health of the Applicant’s wife has been ongoing for some time and is likely to continue to need management. Of itself, none of this gives rise to a reason why the hearing ought to be adjourned.
Moreover, while I accept that the Applicant’s wife is unwell, the Applicant produced no evidence nor made any submission as to how the ill-health of his wife prevented his effective participation in the hearing.
The final matter raised by the Applicant in support of the application for an adjournment of the hearing was his mental health. I understood the Applicant to assert that he was not capable of participating in the hearing as a result of his poor mental health.
The difficulty with this submission is that it runs counter to the medical record that the Applicant has annexed to the First Affidavit. That record discloses the Applicant’s notes of consultation with International Health and Medical Services. The clinical notes record that the Applicant has ‘nil mental health history reported upon induction and nil evident upon completion of this scheduled re-screen’. Further, the impression recorded by the relevant treating professional is as follows: ‘Mental state appears largely stable with some worry and bouts of low mood related to concerns for his wife’s welfare’. The plan for the Applicant is recorded as being a ‘Follow up as per screening schedule or upon request…’
I put to the Applicant that the medical record annexed to his First Affidavit did not support the submission he had made. The Applicant insisted that he did have mental health issues.
I do not accept, on the basis of the evidence before me, that the Applicant has mental health issues of such significance that it would prevent his participation in the hearing. My view of this is strengthened when one has regard to the fact that the Applicant, in the days leading up to this hearing, was able to file two affidavits in support of his case, and was also capable of making the urgent interlocutory application in July of this year which led to the Minister being restrained by injunction from removing him from the Commonwealth of Australia.
For all of the above reasons, I refused the application for an adjournment.
The application for an Extension of Time
As has been noted above, the Authority affirmed the delegate’s decision on 20 June 2017. The Application was not filed in this Court until
23 July 2019.
Section 477(1) of the Act requires that an application to this Court in relation to a migration decision must be made to the Court within 35 days of the date of the relevant decision. Section 477(2) provides that the Court may extend the 35 day period, as the 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.
The expression ‘in the interests of the administration of justice’ is not defined in the Act. This Court has, however, adopted the non-exhaustive principles set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (see also SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15] – [19]). Those factors include the extent of the delay, any explanation for the delay, any prejudice to the respondents, the impact on the applicant, the interests of the public at large and the merits of the proposed application.
In the Application, the Applicant set out the following grounds in support of the application to extend time:
‘The decision made by IAA has an error, so I think I would need to hear this case in the Federal Circuit Court of Australia.’ (sic)
‘I was alone all the time after I got my decision and I was under mental pressure and I felt my self very depressed at the time’ (sic)
In his First Affidavit and at the hearing, the Applicant expanded upon his reasons for seeking an extension of time and sought to explain the reasons for his delay in filing the Application. The reasons advanced by the Applicant were somewhat similar to the reasons advanced in support of his application for an adjournment of the hearing. In substance, the Applicant submitted that the reason for his delay in bringing the Application was his inability to find a ‘free’ lawyer, his inability to pay for legal representation, his wife’s treatment for cancer, and his mental health problems.
I accept that the Applicant was not able to find a lawyer who would act pro bono. While the Applicant has asserted that he lacked the funds necessary to institute proceedings on time, that is not of itself a sufficient explanation of the delay in bringing the Application: Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279.
Further to the above, I note that the Applicant was able, in the face of imminent deportation, to make an urgent application in this Court for injunctive relief. Having demonstrated that capacity, I do not accept the Applicant’s submission that he was not able to bring the Application within time because he could not access a ‘free’ lawyer.
The Applicant also submitted that his wife’s ill-health effectively distracted him from bringing the Application in time. I am prepared to accept that the Applicant may have been upset by the ill-health of his wife and that it may have taken up some of his time. The facts disclose, however, that the Applicant’s wife has been ill since 2017. That illness did not prevent him from seeking to engage lawyers in 2017, it did not prevent him from bringing an application for urgent injunctive relief in July of this year and it did not prevent him from attending and participating in this hearing. Further, other than the general assertion made by the Applicant that his wife’s health prevented the filing of the Application, there is no material evidence that supports this assertion. I am therefore not able to accept that the Applicant’s wife’s health was a reason for the delay in the filing of the Application.
Finally, the Applicant relied on his mental health as a reason why he did not file the Application on time. Other than the bald assertion that this is the case, no evidence was produced to support this fact. In fact, the only evidence produced is the medical record referred to earlier. That document, which records a review of the Applicant’s mental health dated this year, indicates that the Applicant has ‘nil mental health history reported…’ I therefore do not accept that the Applicant’s mental health resulted in him being prevented from filing the Application within the time limit prescribed by the Act.
It is important to observe that the extent of the delay in this case was significant. More than two years have passed from the date of the Authority’s decision to the date upon which the Applicant filed his application in this Court. That is an extensive period. This is not a case in which the Applicant has filed an application shortly after the relevant time period has expired.
The Minister did not submit that there was any prejudice in granting an extension of time to the Applicant. I accept that proposition. I also accept, and take into account, the fact that the impact on the Applicant of not having the opportunity to fully argue his case is significant – it would result in him being unable to pursue his claims for protection and in his likely deportation from Australia.
Finally, I am required to consider the merits of the substantive application. In undertaking this assessment I have had regard to the comments of Justice Wigney in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [49], that ‘it is generally inappropriate to fully investigate the merits of the substantive case, though obvious strengths or weaknesses may be a factor for or against extending time’. His Honour made that observation having cited with approval the comments of French J (as His Honour then was) in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83.
Further in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, a Full Court of the Federal Court of Australia endorsed statements by Mortimer J that the approach to be taken to a preliminary examination of the merits of the substantive application necessarily involves recognition that the grounds had not been fully considered, developed and argued as if on final hearing. Accordingly, it is not appropriate when exercising the discretion to extend time to undertake a full consideration of the merits of the substantive application. Mortimer J, at [62]-[63] of her decision in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 reasoned as follows:
‘[62] . . . it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer [1998] HCA 27) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[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” ...’
The Full Court endorsed Mortimer J’s use of the criterion ‘reasonable prospects of success’. This is a criterion that poses a lower threshold than that to be applied on the final determination of the issues in a proceeding.
In the Application, the grounds of review relied upon by the Applicant are as follows:
‘1. The IAA failed to give me procedural fairness.
2. The IAA made a serious error of law.
3. The IAA acted unreasonably.
4. The IAA did not consider the evidence or claims’
During the hearing, I asked the Applicant whether he had anything he wished to add to these grounds. He was unable to meaningfully expand on any of them. The Applicant did, however, in his Second Affidavit, take issue with various findings made by the Authority.
I observe at the outset that the grounds of review in the Application are wholly un-particularised. The Applicant was not able to expand upon them during the hearing. The Second Affidavit, while taking issue with some of the findings of the Authority, does not provide any meaningful further detail in relation to the grounds set out in the Application. The failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60]. This observation applies to all of the grounds of review, and applies with particular force to grounds 1 and 2 of the grounds asserted by the Applicant.
The Applicant also alleges that the Authority acted unreasonably, did not consider evidence, and failed to afford him procedural fairness. I have reviewed the decision of the Authority. In my view, these grounds are not sufficiently arguable and do not have reasonable prospects of success when the decision record of the Authority is examined. A review of the Authority’s decision discloses the following:
a)at paragraphs [3] and [4] of its decision, the Authority set out the information it had before it;
b)each of the Applicant’s claims were summarised at paragraph [5];
c)at paragraphs [6] to paragraph [38], each of the Applicant’s claims are assessed in respect of section 36(2)(a) of the Act;
d)at paragraphs [39] to [46], the Applicant’s claims were assessed against the criteria set out in section 36(2)(aa) of the Act;
e)the Authority made findings in respect of the claims. Of some importance, the Authority accepted many of the Applicant’s claims, but nevertheless went on to find that he was not a person who fell within the criteria specified in section 36(2)(a) or 36(2)(aa) of the Act.
In reaching the conclusion I have above, I have also had regard to the Second Affidavit. As I have already indicated, that affidavit does not identify any matters which are likely to give rise to any jurisdictional error. A review of the affidavit discloses that the Applicant takes issue with various findings made by the Authority and then sets out facts or matters that seek to answer the findings made by the Authority. When read closely, it appears to me that the content of this affidavit is unlikely to give rise to any identification of jurisdictional error, but rather amounts to an invitation to the Court to engage in an impermissible review of the merits of the Applicant’s claims.
In AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291, the Federal Court of Australia considered an extension of time application. In that matter, the Refugee Review Tribunal made a decision on 10 July 2013, and an application for review was not brought until
3 September 2014. In assessing the matter, Justice Bromwich at [58] stated that:
‘If the claim of jurisdictional error is at best questionable and the delay is both substantial (for example, well outside a statutory time limit, or concerning a case below in which there has been such a delay) and without any real explanation, let alone a satisfactory explanation, that will tend to support declining to exercise a discretion to intervene.’
In this matter, the delay in bringing the Application has on any view, been a very significant one. The Applicant has not advanced any sufficient explanation for such a lengthy delay. Further, when the grounds of the substantive application for review are looked at, the matters raised are not sufficiently arguable and in my view do not have reasonable prospects of success. These factors in my view outweigh the principal considerations that favour the Applicant i.e. the impact on him having to return to Sri Lanka.
For all of the reasons set out above I decline to grant the application to extend time. As a consequence, the Application must be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 21 November 2019
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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Natural Justice
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Procedural Fairness
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Jurisdiction
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