CYS20 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1031
•16 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CYS20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1031
File number: MLG 2214 of 2020 Judgment of: JUDGE GOSTENCNIK Date of judgment: 16 October 2024 Catchwords: MIGRATION – protection visa – applications for judicial review must be made by applicant within 35 days of the date of the Tribunal’s decision – applicant filed application for judicial review 35 days after time elapsed – not satisfied that it is in the interests of the administration of justice to grant extension of time – applicant did not disclose prior judicial review proceeding – whether any prejudice to Minister – assessment of the merits of the substantive judicial review application – no reasonable prospects of success – application for extension of time dismissed. Legislation: Migration Act 1958 (Cth) pts 5, 7, ss 5H(1), 5J(1), 5K, 36, 36(2)(a), 36(2)(aa), 477A(2), 477(1), 477(2), 486D(1), 499, 500
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, div 1, pt 2, item 2, item 3
Migration Regulations 1994 (Cth) sch 2.
Cases cited: AQN15 v Minister for Immigration and Border Protection [2016] FCA 571
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
BYM16 v Minister for Immigration and Border Protection [2018] FCA 326
CTG17 v Minister for Immigration & Anor [2018] FCCA 2244
DZY17 v Minister for Home Affairs [2018] FCAFC 196
GOK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 169
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Mentink v Minister for Home Affairs [2013] FCAFC 113
NLJV v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 844
Parker v The Queen [2002] FCAFC 133
Porter v Ghasemi [2021] FCAFC 144
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9
SZKDC v Minister for Immigration and Citizenship [2008] FCA 164
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
TCWY v Minister for Immigration and Border Protection [2018] FCA 804
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of last submission/s: 16 September 2024 Date of hearing: 23 September 2024 Place: Melbourne Counsel for the Applicant: Self-represented litigant Counsel for the Respondents: Mr Mintz Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2214 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYS20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
16 OCTOBER 2024
THE COURT ORDERS THAT:
1.The applicant’s application to extend the 35-day period within which to make an application for judicial review is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $4,189.38.
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 Gostencnik
The applicant is a citizen of Malaysia who arrived in Australia on 30 March 2015: Court Book (CB) 23. On 18 March 2016 the applicant applied for a Protection (Class XA) (Subclass 866) visa: CB1-CB39. The applicant claimed she feared harm and being subjected to death threats by Islamic communities because she is an Islamic apostate who married a Christian: CB34-CB36. On 4 August 2016, a delegate of the (then) Minister of Immigration and Border Protection refused the visa application: CB44-CB58.
The delegate concluded that the applicant would not face a real chance of persecution for one or more of the reasons mentioned in s 5J(1) of the Migration Act 1958 (Cth) (Act); she is not a refugee as defined in s 5H(1) of the Act; she is not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or (aa) of the Act, and that the applicant could receive effective protection from the authorities in Malaysia from any threats against her life.
The applicant subsequently applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision: CB59-CB65. The Tribunal acknowledged the review application on 19 August 2016: CB82-CB83, and on 20 April 2017, the Tribunal invited the applicant to attend a hearing scheduled for 22 May 2017 to give evidence and present arguments relating to the issues in the case: CB177-CB178. The invitation also requested the applicant to complete and return an enclosed ‘Response to hearing invitation – MR Division’ form to confirm her attendance at the hearing, and to provide the Tribunal with any additional or new information which the applicant might wish the Tribunal to consider.
The applicant attended the scheduled hearing before the Tribunal at which she gave evidence and presented arguments assisted by an interpreter in the Malay and English languages: CB190. By its decision on 2 June 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa: CB221.
In its Statement of Decision and Reasons (Decision), the Tribunal set out at [1]-[8] a brief background and the relevant protection visa criteria by reference to ss 5H(1), 5J(1), 5K and 36 of the Act, Sch 2 to the Migration Regulations 1994 (Cth) and Ministerial Direction No.56 made under s 499 of the Act. At [9]-[10], the Tribunal summarised the applicant’s claims as set out in her protection visa application, and at [11]-[55] the Tribunal summarised the findings and reasons in respect of the hearing outcome: CB222-CB231.
At [19] of the Decision, the Tribunal noted there were significant inconsistencies between the applicant’s evidence in the written materials and that provided at the hearing.
The applicant alleged that she did not pursue an application in Malaysia to convert from Islam to Christianity as she believed it was not permitted; however, when she was questioned on this matter by the Tribunal, the applicant changed her evidence, claiming that she tried to convert but it had not been accepted. The applicant explained that she did not include this in her written application as she did not have any documents to support it. At [31]-[32] the Tribunal did not accept the applicant’s explanation and considered at [33] that there is a legal process available to the applicant to revert to Christianity on which she has not embarked.
The applicant also claimed that she would be harmed and allegedly received threats when she sought to marry a Christian; change her name and religion. At [35] the Tribunal noted the attempt to change her name was also not included in the applicant’s written application, accepted that she had sought to change her name, and that the application was refused but, considered that the applicant’s claim that she was harassed and threatened after she lodged a request to change her name was concocted. At [36], the Tribunal considered the applicant's claims that she would be harmed by Muslim groups when she sought to change her name and religion, including the various comments said to have been made by members of the community to her and her husband. At [37], the Tribunal records that it enquired whether the applicant reported these comments to the police and noted the applicant’s oral evidence that she did, but the authorities took no action. The Tribunal noted that this evidence contradicted the earlier applicant’s written evidence which indicated that the applicant did not feel safe even asking for help from the authorities.
The Tribunal determined at [32], [35], [37] and [39] of the Decision that the applicant concocted the following claims in the hearing; that she received death threats for marrying a Christian, she approached the Sharia Court to convert from Islam, she was threatened and harassed for changing her name and she approached the authorities in relation to the threats. The Tribunal rejected the aforementioned claims and instead considered at [40] on the basis of the personal circumstances of the applicant, that she has the opportunity to seek reversion and will be permitted to convert to Christianity.
The Tribunal concludes at [51]-[55] that it was not satisfied the applicant was a person in respect of whom Australia has protection obligations under ss 36(2)(a) or (aa) of the Act, and it affirmed the decision not to grant the applicant a protection visa: CB231 at [56].
By application filed on 25 June 2020 in the (then) Federal Circuit Court of Australia, the applicant seeks judicial review of a decision by the Administrative Appeals Tribunal (Tribunal). An application to the Court for a review of a decision of the Tribunal must be made within 35 days of the date of the Tribunal's decision: s 477(1) of the Act. The Tribunal made its decision on 2 June 2017 and the 35-day period within which an application to the Court must be made ended on 7 July 2017. The applicant therefore made her application almost 3 years (1084 days) after the time prescribed had lapsed. Section 477(2) of the Act allows the Court, by order, to extend the 35-day period as the Court considers appropriate if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to do so, and the Court is so satisfied.
The applicant's grounds in support of an extension of time specify the following (reproduced verbatim):
(1)I DID NOT HAVE ENOUGH MONEY FOR THE COURT APPEAL PROCESS AT THE TIME.
(2)I ALSO CAN NOT PAY LEGAL SERVICE FOR APPEAL TO THIS COURT AT THAT MOMENT, SO TO MAKE SURE I IN LAWFULL I GET VOLUNTEERED IN UNION OF WORKERS TO HELP ME IN THIS APPEAL PROCESS.
(Uppercase text in original).
The correct approach to the exercise of the Court's discretion under s 477(2) of the Act, by reference to the corresponding provision for applications made to the Federal Court of Australia in s 477A(2) was explained by Kiefel CJ, Gageler, Keane and Gleeson JJ in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 as follows:
10. The "may" in the chapeau to s 477A(2) confers an authority to exercise the jurisdiction conferred under s 476A(1)(b) or s 476A(1)(c) of the Act, and is not merely facultative in nature. The power is discretionary in the sense that it involves an evaluative judgment as to a state of satisfaction.
11. At a high level of generality, it may be accepted that the purpose of a power to extend time is "to eliminate the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". However, what amounts to injustice in this context is not obvious. The text of s 477A reveals a legislative intention to restrict the Federal Court's exercise of its original jurisdiction under s 476A(1)(b) and (c) by a 35 day time limit on applications, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where a judge has reached the state of satisfaction in s 477A(2)(b).
12. On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
13. In the absence of mandatory considerations for determining whether his Honour had the state of satisfaction required by s 477A(2)(b), the primary judge properly referred to the well established principles guiding decisions whether to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) that were stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen. Those principles, which are non-exhaustive of the factors that may be relevant to an extension of time under s 477A(2), include that "[t]he merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted".
14. Guidelines for the proper exercise of the power in s 477(2) of the Act (which is in relevantly similar terms to s 477A(2)) were stated by the Full Court of the Federal Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. In particular, the Full Court stated that an evaluation of the merits of the proposed substantive application that goes further than an "impressionistic evaluation of the [applicant's] proposed ground of review, strongly suggests that it misconceived its function or power and acted in excess of its jurisdiction". The Court added that "the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review" and, if "a court seeks to assess the merits of the proposed grounds of review against a standard of whether they would ultimately succeed on the hearing of the application, the conclusion will usually be drawn that it has misconceived its function and or power".
15. The reasoning of the Full Court in DHX17 was informed by the earlier decision of Mortimer J in MZABP v Minister for Immigration and Border Protection concerning s 477(2), endorsed on appeal by a different Full Court. In MZABP, Mortimer J noted that the subject matter of an application under s 477(2) is not whether the applicant will ultimately be successful in challenging the decision under review. Her Honour considered that the "correct approach" to the assessment of the merits of the proposed application, for the purpose of deciding whether to extend time, "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'". Her Honour also expressed the view that "[i]f a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level ... into a fuller consideration of the arguments for and against each ground of review ... that is not a function appropriate to a discretion such as that contained in s 477(2)".
16. Underlying Mortimer J's reasoning was an analysis of the nature of the power conferred by s 477(2). Her Honour considered the legislative history and extrinsic materials but concluded that they shed no particular light on the content of the phrase "in the interests of the administration of justice". Ultimately, her Honour characterised the judgment to be made under s 477(2)(b) as involving a conclusion that "it is appropriate, or fair and equitable, that a litigant should have the opportunity for which the legislative scheme provides: namely, a review of the lawfulness of the decision said to affect the litigant, conducted in accordance with judicial process and subject to considered judicial determination". Her Honour also expressed the view that it will seldom be appropriate to refuse to extend time where a ground of review is properly described as weak as opposed to hopeless, citing the observation of French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs, made in relation to s 11 of the Administrative Decisions (Judicial Review) Act, that "a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it".
17. French J's observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level". That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18. However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
19. It follows that the Full Court in DHX17 was wrong to say that "the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review". As the merits of a proposed application are a permissible consideration, it is within the Federal Court's jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant's case is likely to commit jurisdictional error, was mistaken.
(citations omitted).
The non-exhaustive principles set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 were approved in Parker v The Queen [2002] FCAFC 133 at [6] as follows:
1.applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
2.action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3.any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4.however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5.the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
See also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [2], [33]-[36]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; Porter v Ghasemi [2021] FCAFC 144; (2021) 286 FCR 556 at 566, [40].
The extent of the delay - 1084 days - is by any measure a lengthy delay. The explanation given for the delay is in substance, one of financial capacity said to have impacted the applicant’s ability to make the application or to engage a lawyer to assist the applicant in making the application. Despite orders made by Registrar Van Der Westhuizen on 10 April 2024, which allowed the applicant to file, inter alia, any additional evidence by 1 May 2024, the applicant did not do so, and there is no evidence before the court about the applicant’s financial circumstances. For example, there is no evidence explaining: the extent of the applicant’s financial circumstances; how those circumstances impacted the applicant’s capacity to bring the application in a more timely way; how those circumstances changed to allow the current application to be made; or why the applicant’s financial circumstances did not impede the applicant’s capacity to bring the previous judicial review application to which reference is made further below. No explanation is proffered about the financial hardship alleged or how it explains the delay in making this application or any part of it.
Moreover, to the extent the applicant contends a lack of capacity to engage a lawyer to seek advice about a review of the Tribunal's decision as explaining the delay or part of it, while some latitude may be allowed to unrepresented litigants, an inability to engage a lawyer alone does not provide a satisfactory explanation for a delay: Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17] and the authorities cited therein. Generally speaking, an applicant’s financial circumstances or difficulties alone will be an insufficient excuse for delay and will not provide a justification for an extension of time: QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7]; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [12]; GOK18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 169 at [25].
During the hearing of the extension of time application, the applicant also sought to explain the delay because of unfamiliarity with her legal options. The applicant said she did not know what to do or where to go. This explanation for the delay is difficult to accept considering her previous application to the Court. In any event, to the extent that the applicant may have been unaware of the time limit attached to making a judicial review application to this Court, an unrepresented litigant's ignorance of the time limit for an application for judicial review is not, without more, a satisfactory explanation for delay: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9]; SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [38]. Here the applicant was on notice of her right to seek review and the relevant time for doing so by reason of the ‘Tribunal's Information about Decisions – MR Division’ fact sheet, which accompanied the notification of the Tribunal's decision: CB218-CB220. Indeed, she had previously sought review of the Tribunal’s decision within the time prescribed.
A further explanation the applicant proffered during the hearing was that she was stressed, did not know how to make the application and did not have any help to do so. That the applicant suffered from stress such that it affected her capacity to make the application in time or in a timelier manner, might provide a satisfactory explanation if supported by medical evidence. But here, no such evidence is offered. Moreover, that the applicant previously made such an application within the prescribed time belies any suggestion the applicant was afflicted by stress which affected her capacity to make a timely judicial review application or that she did not know how to make the application.
None of the reasons for the delay advanced by the applicant provide an acceptable explanation for the delay. Both the extent of the delay and the absence of any acceptable explanation for the delay weighs against a conclusion that it is necessary in the interests of the administration of justice to make an order extending time.
Other than making the previous judicial review application, there is no evidence the applicant took any action to dispute the Tribunal’s decision.
As to prejudice, the first respondent contends he is prejudiced in this matter because the applicant brought a second application for judicial review when the first application has already been fully determined. This is plainly correct. If an extension of time is granted, the first respondent would be forced to respond to an application, which for reasons shortly to follow, would be bound to fail. But any such prejudice may be wholly defrayed by an order for costs. No other prejudice to the first respondent is identified. Consequently, I am not persuaded there would be any material prejudice to the first respondent. Nevertheless, as earlier noted, the mere absence of prejudice is insufficient to warrant the grant of an extension: Hunter Valley at 348; Parker at [6]; Mentink at [33]; SZTRY at [6]; BQQ15 at [33].
Turning then to consider the merits of the substantive judicial review application, it is uncontroversial that the applicant has previously applied to the Court for judicial review of the Tribunal’s decision which is the subject of this application. Nor is it in dispute that judgment has been entered in respect of the earlier application: CB284-CB296; CTG17 v Minister for Immigration & Anor [2018] FCCA 2244. The earlier application was dismissed because the applicant’s grounds of judicial review effectively sought impermissible merits review and the Tribunal’s decision was not found to have been attended by jurisdictional error.
Section 486D(1) of the Act, provides that a person must not commence a proceeding in this Court in relation to a Tribunal decision unless the person, when commencing the proceeding, discloses to the Court any judicial review proceeding already brought by the person in this or any other Court in relation to that decision. Relevantly, a Tribunal decisionis a privative clause decision, or purported privative clause decision, made on review by the Tribunal under Pt 5 or 7 or s 500: s 486D(5). The decision of the Tribunal that was the subject of the previous judicial review proceeding and is the subject of this proceeding is a privative clause decision made under Pt 7.
The application form completed and filed by the applicant to commence this proceeding contains the following:
Other Court Proceedings
(This section must be completed if the applicant has made a previous application or applications to a court to review the decision – see section 486D of the Migration Act 1958.)
Person or persons who made each previous application: .................................................
Court or courts to which each application was made: ......................................................
Commencement date of each previous application or applications: ................................
File number of each application: .....................................................................................
Outcome of each application: ..........................................................................................
The applicant did not complete this part of the application and so did not here, nor elsewhere disclose the earlier judicial review application. The applicant’s accompanying affidavit filed on 25 June 2020 also did not refer to the earlier application.
Section 486D(1) of the Act imposes a jurisdictional precondition which must be met at the time that the proceeding is commenced: see discussion in TCWY v Minister for Immigration and Border Protection [2018] FCA 804 at [28]-[34]; see also DZY17 v Minister for Home Affairs [2018] FCAFC 196; [2018] 267 FCR 673 at [27]–[29]; NLJV v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 844 at [14]. Put another way, the Court has no jurisdiction to entertain the application if the precondition is not satisfied. That means that the applicant’s failure to disclose the earlier proceeding in her application or accompanying affidavit is fatal. Therefore, if by order, the 35-day period were extended, the application would not be competent, and dismissal of the application would invariably follow. The application may thus fairly be described as having no reasonable prospects of success.
In the circumstances, it is unnecessary to examine the grounds for review proposed to be advanced by the applicant in assessing the merits of the application. That said, I will make some brief observations. First, the proposed review grounds are not particularised. This is despite an order made by Registrar Van Der Westhuizen on 10 April 2024 requiring the applicant to file and serve, inter alia, any amended application with proper particulars of the grounds of the application. The lack of particulars would provide a basis on which the Court might dismiss the judicial review application: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; WZATH v Minister for Immigration and Border Protection [2014] FCA 969; AQN15 v Minister for Immigration and Border Protection [2016] FCA 571; BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]-[13]. Second, at the hearing before me, the applicant was also unable to particularise her proposed grounds of review. Instead, her complaint was that the Tribunal did not accept her claims but could not point to any jurisdictional error made by the Tribunal in not accepting her claims. Unfortunately, much like the previous application, the applicant appears to want the Court to undertake an impermissible merits review.
For the reasons given earlier, the application has no merit much less is there any arguable case on which the application could be sustained. This weighs strongly against a conclusion that an order for an extension of time is necessary in the interests of the administration of justice.
Save for prejudice, all of the other relevant matters discussed weigh against a conclusion that an order for an extension of time is necessary in the interests of the administration of justice, and as there are no other matters raised by the applicant, or about which I am aware, that should be considered in assessing whether to allow an extension of time, the application for an extension of time should be dismissed.
The first respondent sought an order for costs fixed in the sum of $7,853.00 in the event the applicant was unsuccessful in the extension of time application. Except for maintaining an incapacity to pay any costs, the applicant did not advance any cogent reason why an order for costs should not be made.
Given the history of this matter I consider that a costs order is appropriate, but the amount sought is excessive. The amount claimed by the first respondent is by reference to (although lower than) the amount fixed by item 3 of Div 1 Pt 2 Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). However, that item pertains to costs where a proceeding is concluded at a final hearing. This proceeding had been concluded at an interlocutory hearing and item 2 of Pt 2 Sch 2 of the Rules is a better guide. I am not persuaded that the work involved in preparing for and attending the interlocutory extension of time hearing justifies a departure from the scale amount. I consider the amount fixed by item 2 of the scale to be reasonable and appropriate in the circumstances.
Costs fixed in the sum of $4,189.38 will be awarded in favour of the first respondent.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 16 October 2024
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