CXK17 v Minister for Immigration
[2018] FCCA 1041
•7 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CXK17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1041 |
| Catchwords: MIGRATION – Visa – Safe Haven Enterprise Visa – extension of time – substantial delay – no adequate explanation for delay – lack of merit in proposed ground of review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(i), 36(2)(aa), 46A(2), 473CB, 476 and 477(2) |
| Cases cited: Re Commonwealth; Ex parte Marks [2000] HCA 67 WZATU v Minister for Immigration and Border Protection [2016] FCCA 2247 SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | CXK17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 263 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 16 February 2018 |
| Date of Last Submission: | 16 February 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 7 May 2018 |
REPRESENTATION
| The Applicant: | In person with an interpreter |
| Counsel for the Respondents: | Ms N Milutinovic |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application to extend the time in which these proceedings were to be filed is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of SEVEN THOUSAND, THREE HUNDRED AND TWENTY EIGHT DOLLARS ($7,328).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 263 of 2017
| CXK17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an extension of time in which to apply for judicial review under s.476 of the Migration Act 1958 (Cth) (‘the Act’). The applicant seeks the extension of time so that he can seek review with respect to a decision of the Immigration Assessment Authority that affirmed an earlier decision of the first respondent refusing to grant him a Safe Haven Enterprise (Class XE) Subclass 790 visa. The decision of the Immigration Assessment Authority is dated 20 October 2016. The applicant had 35 days from the making of the decision in which to apply to this Court for a review. The proceedings in this matter were filed on 30 June 2017 and, accordingly, the application is approximately seven months out of time. It should have been filed by 24 November 2016.
The applicant appeared before me, unrepresented, and with the assistance of an interpreter in the Tamil and English languages. His application identifies the grounds of application for an extension of time, as follows:
“I was not aware that my bridging visa had expired until the Department of Immigration officers came to my workplace and checked all employees. When I first tried to contact my migration agent, she was in India. I made 2 appointments to see her, but each time I visited the office, it was closed. I checked my emails every day and did not receive an email from her about the IAA decision. I was at work when she left a message about payment. I had already paid $4000 for the SHEV application and $500 for a submission to IAA. She wanted another $500 but I could not pay. The messages are on my mobile phone, but it is locked away in immigration detention property.”
(copied verbatim)
With respect to the grounds of the substantive application for judicial review, they have been identified as follows:
“I believe that the IAA committed jurisdictional error in my case.”
For the purpose of the hearing, the applicant relied upon his affidavit filed contemporaneously with the application. That affidavit annexes a copy of the Tribunal decision but, otherwise, adds nothing of substance to the application. He also relies on the materials in the Court Book, which was filed by the first respondent. Given that the applicant was unrepresented, I permitted him to give some brief oral evidence, on affirmation, to explain his reasons for the delay in filing these proceedings.
His evidence was that he did not file his application within time because he was busy working and he had moved house, and he did not receive any correspondence. He said that the previous house he was living in was vacant after he left it and, probably, the letter was sent there, but he did not get it. He acknowledged that he knew that he had an outstanding application before the Independent Assessment Authority. He said that he knew that there was to be a decision and he waited for about six or seven months but, given that he had been told by people that it could take a long time, he was not concerned. He said that he telephoned the Immigration Assessment Authority and informed them that he had changed his address. He told the Court that he received a copy of the written decision and reasons in December of 2016. This occurred because another person was living at the house that he had vacated and that person told him that there was a letter for him, and gave it to him at his workplace.
When asked why, given that he had received the reasons in December of 2016, it took six months for him to file an application in this Court, he said that he was under the impression that his lawyer would do it, until the point at which he was arrested by immigration authorities at his workplace. His evidence was that he called his lawyer three to four times after he received the written decision and reasons, and spoke to her on one occasion. He said that he had been assured by her that she had made all the necessary arrangements with respect to an application to this Court, and then after that point his further calls to her went unanswered.
I note that that is inconsistent with the grounds of application for an extension of time. He told the Court that he was under the impression that his application before the Independent Assessment Authority had been successful because there was a long delay, and also because he got a letter from Bupa Medical which he interpreted as meaning that he had been successful. For that reason, he said he did not take any further action.
The Court has power to extend the period in which an application may be filed for judicial review under the Act. Section 477(2) of the Act provides as follows:
“(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
(bthe Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
The applicant has satisfied the first of the preconditions because he has filed an application in writing to this Court indicating why he says it is necessary that he be given an extension of time. It remains for me to consider whether I am satisfied that it is necessary in the interests of the administration of justice to make such an order. The authorities have identified a number of non-exhaustive matters that are relevant to the question of an extension of time. They are:
a)the adequacy of any reason for delay;
b)the length of any delay;
c)any prejudice that may be occasioned to the respondent in the event that an extension of time was granted;
d)the consequences on the applicant if an extension of time is not granted;
e)the merits of the proposed application for judicial review; and
f)the interests of the public in the timely and efficient disposition of legal proceedings.
I have summarised the applicant’s evidence as to the reasons for the delay. The applicant did not suggest that the delay was not a significant delay. Rather, his presentation suggests that he asks the Court to conclude that he has provided an adequate reason for the delay itself. Counsel for the first respondent submitted that the length of the delay was very significant and that it would only be in exceptional circumstances that such a lengthy delay could be excused. The first respondent says that the delay is inordinately long.[1]
[1] Re Commonwealth; Ex parte Marks [2000] HCA 67 at [13], [15], [16] and [17]; WZATU v Minister for Immigration and Border Protection [2016] FCCA 2247 at [20] to [24].
The first respondent submitted that the explanation provided by the applicant for the delay was simply not an adequate explanation. It is not sufficient, it submits, to rely on any deficiency or fault on the part of his migration agent because the onus was on him to make proper inquiries and take all necessary action to ensure that he was protecting his rights.[2] Nor was it to the point that the applicant may not have known about the relevant time limits or even the ability to bring judicial review proceedings.[3]
[2] SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300 at [43].
[3] SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17 at [38].
I have taken into account the reasons provided by the applicant, and considered the asserted fact of his breakdown in his relationship with his solicitor or migration agent. I am not satisfied that the evidence provided by the applicant amounts to an adequate explanation for the very lengthy delay in filing these proceedings once he did actually receive a copy of the written reasons.
The first respondent quite properly has not sought to suggest that it would be caused any prejudice in the event that the applicant was given an extension of time. I take that into account, but that is, of course, not of itself a determinative factor. I take into account, as seems obvious, that the impact on the applicant, if I refuse to extend time, will be significant.
I note that it is not suggested by the applicant that he was in immigration detention at the time the decision was handed down. He was working at that time. Although he was later taken into immigration detention, he was still responsible for ensuring that this application was filed in a timely manner. The prejudice to the applicant if I do not extend time would almost certainly be that he will be returned to Sri Lanka.
I take into account the fact that he has not lived in Sri Lanka since some time in the middle of 2012, and so a return there may, of itself, be a form of hardship.
It is well established that there is public interest in statutory time limits for the issue of proceedings being observed, and that there is a public interest in there being an end to the curial process: that public interest is reflected in the fact that Parliament has seen fit to set a time limit of 35 days in which to file an application of this kind.
I turn to the consideration of the merits of the proposed application.
Background and Tribunal Decision
The background of the applicant’s claims and the decision of the Immigration Assessment Authority has been helpfully summarised by the first respondent in its outline of submissions. I do not understand any aspect of that summary to be disputed by the applicant, and so I have paraphrased aspects of it below.
The applicant is a Sri Lankan citizen who arrived in this country on 17 August 2012. He was an unauthorised maritime arrival. Initially, he applied for a protection visa. The Department of Immigration and Border Protection found that that application was invalid. He was invited on 29 September 2015 to apply for the subject visa, pursuant to s.46A(2) of the Act. The subject visa was applied for on 14 December 2015, and the applicant identified a series of claims in support of the application. He was interviewed by a delegate of the Minister on 21 January 2016, and his application was refused by the delegate on 17 August 2016.
The Immigration Assessment Authority commenced a review of the decision of the delegate, the matter having been referred to it by the delegate on 18 August 2016. A representative of the applicant requested an extension of time in which to provide submissions to the IAA until 7 October 2016. The IAA indicated that it would not make a decision prior to that date. No materials having been received by 20 October 2016, the IAA proceeded to make a decision.
The applicant’s claims were identified by the IAA as being a fear of persecution by the Sri Lankan Army, the police, and the Karuna Group, because of his Tamil ethnicity and links to the Liberation Tigers of Tamil Eelam (‘LTTE’) on the basis of him having worked for a non-government organisation known as the Tamil Rehabilitation Organisation (‘TRO’).
He also claimed to fear persecution because his first name is the same as a leader of the LTTE. His father had previously been detained, questioned and assaulted by the Army prior to 1990 because it was suspected that he was an LTTE supporter. The applicant himself had been detained, questioned and assaulted by the Army, the police, and the Karuna Group on a number of occasions because of his involvement with the TRO.
This included being detained for a number of days and beaten in 2011. Whilst working as a bus driver between 2009 and 2012, he claims to have been regularly stopped at checkpoints by the Army, the police, or the Karuna Group and beaten until he paid a bribe. He claimed to fear harm because of his status as a failed asylum seeker, and because he departed the country illegally. He claimed that authorities in Sri Lanka had been inquiring about his whereabouts.
In affirming the decision under review, the IAA relied upon the material referred by the secretary under s.473CB of the Act. The IAA made significant findings of credit adverse to the applicant. These were largely based around inconsistent versions of events he had given in relation to a number of matters.[4]
[4] Court Book (‘CB’) p 248 at [14], [15] & [17].
It found aspects of his evidence implausible[5]. It concluded that he was not a credible witness, and that he was prepared to exaggerate, embellish and fabricate aspects of his claims specifically to boost his prospects of obtaining a visa. For that reason, his evidence was not accepted, and in particular the IAA did not accept that he had been threatened or detained in 1999 and 2000 due to his name, or that he was detained and mistreated in 2007 or 2011, and a range of other matters.[6]
[5] CB p 248 at [16].
[6] CB pp 250-251.
The IAA specifically found that it did not accept that he had experienced any problems because of his involvement with the non-government organisation TRO, or that the authorities had been enquiring about his whereabouts after he left Sri Lanka.
The IAA accepted some aspects of his evidence, including those relating to the treatment experienced by his father. It also accepted that he had worked for the TRO as a bus conductor before becoming a bus conductor for a private company, and that there were occasions where he paid money to the Army, the police, or the Karuna Group at the request of his employer. It took into account that he would be considered as a failed asylum seeker who had departed illegally.
The Tribunal considered relevant country information and concluded there was not a real chance that he would face serious harm upon return to Sri Lanka on the basis of being a Tamil male from Batticaloa. It did not accept that the authorities would have an adverse interest in him because of his association with the TRO. It did not accept that he had a profile of someone who would be perceived to have links to the LTTE. It considered the claim to fear harm as a failed asylum seeker who had illegally departed Sri Lanka in light of relevant country information.[7]
[7] CB pp 253 to 254.
It concluded that this would not cause him to be perceived as a person with links to the LTTE. Whilst it concluded that he may be charged as a result of having departed Sri Lanka illegally, it was satisfied on the basis of country information that any period of detention would be brief and would not result in a threat to his life or liberty, or any significant physical harassment or ill-treatment, or any other form of serious harm.
It concluded that any period of detention would be as a consequence of a law of general application and would not amount to persecution. It considered his claims both individually and cumulatively. It was not satisfied that he met the requirements of s.36(2)(i) of the Act, or that he would satisfy the complementary protection obligations pursuant to s.36(2)(aa) of the Act.
The applicant has not identified any proper grounds of judicial review. That, in itself, would be sufficient reason to dismiss the application. In WZAVW v Minister for Immigration and Border Protection[8], the Court had this to say on that matter:
“(This ground is) an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.”
[8] [2016] FCA 760 at [35].
Counsel for the first respondent submits that the IAA properly performed its statutory task, took into account the relevant legislation and the procedures it was required to perform, and that its reasons disclose that it considered all issues before it, and that its findings were open to it.
In brief oral submissions before me, he says that he did not know why they did not accept his evidence, and he, in effect, reiterated the general nature of his claims. The applicant submits that the TRO is a banned organisation, and as a result if he returned to Sri Lanka, he was likely to be shot and killed. He submitted that if he was given more time to prepare then he would be able to gather more evidence to put before the Court to support his case. His submissions really amounted to a heartfelt affirmation that he had been persecuted, and that the TRO was still a dangerous organisation to be associated with. None of the matters identified by the applicant suggest that his reasons for disputing the validity of the decision rose above anything other than a request for an impermissible merits review.
The observations of the Full Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[9] are applicable to this matter:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants' case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
[9] [2004] FCAFC 10 at [10].
I am not satisfied that there has been an adequate explanation for the delay in commencing these proceedings. The delay is very substantial. As McHugh J observed in Gallo v Dawson[10] it will only be in exceptional circumstances that time in which to extend proceedings would be enlarged by many months. The explanation for the delay does not suggest this matter falls into an exceptional category.
[10] (1990) 93 ALR 479 at [481].
Further, I do not regard the sole ground of review as having merit in the sense that I do not regard it as having a reasonable prospect of success. In the circumstances, the public interest into the timely and efficient disposition of legal proceedings assumes greater weight than the consequences for the applicant if time is not extended and the lack of prejudice to the first respondent.
I dismiss the application to extend time in which to file these proceedings and make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 7 May 2018
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