DHG16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 81

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DHG16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 81

File number(s):	MLG 2402 of 2016
Judgment of:	JUDGE SYMONS
Date of judgment:	18 February 2022
Catchwords:	MIGRATION – Application for an extension of time to seek judicial review of a decision of the Immigration Assessment Authority – delay satisfactorily explained – grounds of review unparticularised and without merit – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss.473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 477
Cases cited:	BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475; [2020] FCAFC 127 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 SZTES v Minister for Immigration and Border Protection [2015] FCA 719 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division:	Division 2 General Federal Law
Number of paragraphs:	35
Date of last submission/s:	31 January 2022
Date of hearing:	31 January 2022
Place:	Melbourne
Applicant:	In person
Solicitor for the Respondents:	Mills Oakley

ORDERS

MLG 2402 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DHG16

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE SYMONS
DATE OF ORDER:	18 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time filed on 4 November 2016 is dismissed.

3.The applicant pay the first respondent’s costs and disbursement of and incidental to the application, fixed in the sum of $5200.

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 SYMONS

INTRODUCTION

1. By an application filed on 4 November 2016, the applicant seeks an extension of time for judicial review of a decision of the second respondent (“the Authority”) which was made on 29 August 2016, affirming a decision of the first respondent (“the Minister”) to refuse a grant to the applicant of a Safe Haven Enterprise (Subclass 790) visa (“the visa”).  The Minister opposes the application.  The Authority enters a submitting appearance and has not participated in the proceeding.

2. Pursuant to s 477(1) of the Migration Act 1958 (Cth) (“the Act”), any application to this Court for a review of the Authority’s decision was to be made within 35 days of the date of that decision, namely, on or by 3 October 2016.

3. Accordingly, the application to this Court which was made on 4 November 2016 is 32 days out of time from the last date to file.

   BACKGROUND

4. The applicant is a 23-year old citizen of Sri Lanka who arrived in Australia by boat on 29 April 2013, as an unaccompanied minor, and who, by reason of the timing and means of his travel to Australia, assumed the legal status of an unauthorised maritime arrival.

5. On 2 October 2015, the applicant applied for the visa with the assistance of a migration agent (CB 17-62).  His claims for protection were set out in a statement lodged with the visa application (CB 56-57).  The applicant, under the heading “[w]hy I left that country”, referred to his Tamil ethnicity and to the experience of Tamils in Sri Lanka which he described as involving discrimination “in every aspect of life, including education and employment”.  The applicant described how his uncle (also a Tamil) had been accused once of a crime and despite being innocent had been taken by police from his home and “treated…in a bad way”.  The applicant feared that if he was to return to Sri Lanka he would live in poverty and that he would experience oppression and discrimination in all parts of the country.

6. On 14 December 2015, the applicant participated in an interview with the delegate.  He was assisted by a support person (CB 96).

7. On 18 July 2016, the delegate refused the visa application (CB 90-111) and, on 20 July 2016, the matter was referred to the Authority (CB 112-120).

8. On 15 August 2016, the applicant’s migration agent provided a submission to the Authority (“IAA submission”) which reiterated the applicant’s claims for protection and identified the Convention nexus for the applicant’s claims as arising from his: (i) Tamil ethnicity; (ii) imputed political opinion as a young Tamil male from the east of Sri Lanka who is at risk of being associated with the LTTE or other anti-government groups as a result of his age and ethnicity; and (iii)  his membership of the particular social group of young Tamil males who have left Sri Lanka illegally and who are at risk of detention on return (CB 128).  The IAA submission also included some country information concerning the treatment of Tamils and persons to whom an LTTE association was imputed.

   THE DECISION OF THE AUTHORITY

9. On 29 August 2016, the Authority affirmed the delegate’s decision (CB 134-153).  In making its decision, the Authority:

   (a)identified the information before it as comprising the material referred by the Secretary under s 473CB of the Act and the IAA submission, to the extent that it discussed evidence, including country information which was before the delegate and responded to the delegate’s reasoning and findings in reaching a decision (CB 138 [3]-[5]);

   (a)was not satisfied that the country information referred to in the IAA submission, which it considered to be “new information” and which pre-dated the decision of the delegate could not have been provided to the Minister’s delegate before the delegate made a decision and was not satisfied that the country information was credible personal information so as to satisfy s 473DD(b) of the Act (CB 138-139);

   (b)accepted that the applicant was a national of Sri Lanka who had lived, at times, in Trincomalee, in the Eastern Province, and was a Tamil and Hindu (CB 139 [9]);

   (c)accepted the applicant’s claims and evidence concerning his childhood and education in Sri Lanka, including that his father had died when the applicant was five years old and that his uncle had once been accused of committing a crime, arrested by the police and treated badly (CB 140 [11]-[13]);

   (d)referred to country information concerning the treatment of Tamils in Sri Lanka and accepted that the applicant might return to a period of unemployment but did not accept that the general economic conditions or any societal discrimination in Sri Lanka would constitute serious harm.  It accepted that the applicant might have difficulty securing a place in university, if he sought one, but that was a result of the high level of competition for the limited number of places overall.  The Authority found that there was no real chance of serious harm to the applicant as a young Tamil male from the east (CB 141-143 [17]-[26]);

   (e)referred to the UNHCR’s current Eligibility Guidelines for Sri Lanka and identified (from that publication) the types of LTTE links which might create a need for refugee protection (CB 143 [27]-[28]);

   (f)found that the applicant had no actual links to the LTTE and his mere residence in Trincomalee did not, of itself, give rise to a need for protection.  The Authority noted that the applicant was only five to eight years old during the time he lived in Trincomalee during the war and did not accept that he would be suspected of any association with the LTTE, given his very young age at the time.  The Authority found the applicant did not have a profile that suggested risk and did not consider that the authorities had any adverse interest in the applicant when he had remained in Sri Lanka or that he would be of adverse interest to the authorities on return (CB 144 [31]);

   (g)referred to country information about the return process for returnees (CB 144-146 [34]-[39]) but given its previous findings about the applicant’s profile, did not accept that the applicant would be at risk of adverse attention from Sri Lankan authorities when scrutinised on arrival in Sri Lanka (CB 146, [40]);

   (h)was not satisfied that the applicant faced a real chance of persecution on the basis of being a failed young male Tamil asylum seeker who departed Sri Lanka illegally (CB 147 [48]).  This finding reflected anterior findings including that: (i) any brief period the applicant spent in detention upon return would not amount to serious harm (CB 147 [45]); (ii) any questioning or imposition of a surety or fine under the Immigrants and Emigrants Act 1949 (Sri Lanka) (“IE Act”) would not amount to serious harm of the applicant (CB 147 [46]) and (iii) the investigation, prosecution and punishment of the applicant under the IE Act would be the result of a law of general application and did not amount to persecution for the purpose of ss 5H(1) and 5J(1) of the Act (CB 147 [47]);

   (i)in the context of its complementary protection assessment, the Authority referred to its earlier findings and found, on the basis that “real chance” and “real risk” involved the same standard, that it was not satisfied there was a real risk of significant harm to the applicant as a returned young male Tamil asylum seeker from Australia, or for any imputed political views (CB 148 [53]). The Authority was not satisfied that being questioned, arrested or being subjected briefly to poor prison conditions would constitute significant harm as defined under s 36(2A) of the Act (CB 148, [55]). The Authority was also not satisfied that any societal discrimination would amount to significant harm as defined in the Act (CB 149 [57]).

   PROCEEDINGS IN THIS COURT

10. On 26 April 2017, a Registrar of this Court made procedural orders including that the applicant file and serve, 28 days before the hearing date, an amended application with proper particulars of the grounds of application, supplementary court book (if any) and written submissions.

11. On 25 August 2021, I made further orders by consent, that relisted the application for hearing before me on 31 January 2022 and confirmed that the orders made on 26 April 2017 otherwise remained in full force and effect.  Consistent with the procedural orders, the Minister, on 2 May 2017, filed a court book, and on 17 January 2022, filed written submissions.  The applicant has not produced any further material and therefore relies upon his application and affidavit filed on 4 November 2016.

12. The applicant appeared at the hearing by audio-video link.  He engaged with the Court with the assistance of an interpreter in the Tamil language.  At the outset of the hearing I confirmed with the applicant that he had received both a copy of the court book and the Minister’s written submissions.  However, it was apparent that the applicant had not acquainted himself with either document so that when it came time for the Minister’s representative, Ms Zinn, to address the Court orally, I asked her to summarise the Minister’s submissions, which she did for the benefit of the applicant.

13. In his application filed on 4 November 2016, the applicant identifies the following two grounds for an extension of time:

    1.It is in the interests of justice to grant an extension of time to the applicant as he has no other avenues of review available to him; he fears persecution upon return to Sri Lanka; the applicant was a minor at the time of decision.

    2.The date of the decision is 29 August 2016 and therefore the delay is not inordinate and it is unlikely that any prejudice would flow to the respondents should the application for an extension of time be granted.

14. In his affidavit affirmed on 2 November 2016, the applicant provides the following grounds [reproduced in full] in support of the extension of time.

    1.I request the Federal Circuit Court for an extension of time to file my application.  The reason I was unable to file in time is as follows.

    2.Until recently, I was living in a community care centre run by Anglicare, as I was under the age of 18.  I had a case worker from the Red Cross who was helping me with my matters.

    3.My case worker told me that the decision from the IAA made on 29 August 2016 was a negative one, and she asked if I would like to appeal the decision or return to Sri Lanka.  I had spoken to my previous lawyers who had explained that I had received a negative decision from the IAA.  My previous lawyers did not send me a copy of the decision or any paperwork.  They advised me that they would not be assisting me further, but that I could get free legal assistance from the Asylum Seeker Resource Centre (ASRC).

    4.I told my Red Cross case worker that I would like to appeal the decision and she said that she would arrange an appointment with someone from the ASRC to discuss my case.  My Red Cross caseworker did not give me a copy of the refusal documents.

    5.When I went to the ASRC and asked them about an appointment, they said that all the appointments were booked for that day, and that I should make an appointment to see them another day, so I returned home.

    6.When I returned to my accommodation, someone spoke further to my carer on the phone about my case, but I was not aware of everything that was discussed then.  At the time however, I thought that my carer or Red Cross case worker had done the application or was arranging an application for an appeal on my behalf, but this was not the case.  As I was under the age of 18 years and alone in this country without my parents, they normally took actions and made decisions on my behalf, arranging appointments and making applications.

    7.It was only when I turned eighteen and was moved to other accommodation that I realised that no application for appeal had been made.  I realised this when my caseworker called me.

    8.I attended an appointment at ASRC on 26 October 2016.  During that appointment they assisted me in making a request for a copy of my file from my previous legal representatives, as I did not have a copy of the documents.

    9.I returned to ASRC on 2 November 2016 and received advice in relation to the Federal Circuit Court process.  During this time my previous lawyers sent the ASRC a copy of the documents.

    10.I respectfully request the Court grant leave for me to file my application out of time.

15. The applicant also raises two grounds of review for determination in the event that the extension of time is granted, which are:

    1.The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend to him a real opportunity to reply to adverse information.

    2.I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.

    Extension of Time

16. It is settled that despite the lack of legislative prescription in relation to how the interests of the administration of justice might be satisfied for the purpose of s 477(2) of the Act, the factors which generally inform the exercise of the discretion to extend time include the following:

    (a)the length of delay and whether there has been a reasonable and adequate explanation for it: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [47] (citing SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [46]-[48]);

    (b)whether there is any prejudice to the Minister; and

    (c)whether the applicant’s substantive grounds seeking judicial review justify the extension of time, noting that “[w]hether that standard of veracity is described as being ‘arguable’, ‘reasonably arguable’, or ‘sufficiently arguable’ or having ‘reasonable prospects of success’ or some other description, the hurdle is low”: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 (“DHX17”) at [76]. The examination of the substantive grounds of review should not go beyond a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62]. Further, it will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success: MZABP at [62].

17. However, notwithstanding these factors have been commonly identified and applied as guiding the exercise of the statutory discretion, they do not possess the character of mandatory relevant considerations.  The Court is required in each case to ascertain whether it is in the interests of justice to extend time for the making of the review application: DHX17 at [65].

    Explanation for delay

18. In relation to the length of delay the Minister, in his written submissions, says that while the delay of 32 days is not unduly long, it is also not insignificant. 

19. The Minister characterises the applicant’s explanation for the delay as “unsatisfactory”.  The Minister acknowledges that the applicant’s young age might have created challenges for him but is critical of the failure of the applicant to specify when he was told by his case worker and former lawyers about the unfavourable decision of the Authority, the failure of the applicant to provide “meaningful detail or any supporting documents to explain why his instructions were not carried out, what steps he took (if any) to ensure his instructions were carried out and whether he made any complaint to his former legal representatives or some professional body because his instructions were not actioned”.  The Minister is also critical of the failure of the applicant to explain why he did not request or receive a copy of the Authority’s decision from his former legal representative and invites the Court, in effect, to draw an inference that, given the importance of the decision to his status in Australia, the applicant did in fact request and/or receive a copy of the decision from them.

20. The Minister describes the applicant’s account of the circumstances leading up to him filing the present application as “incredulous” in circumstances where he prepared and lodged the application himself and where no legal representative has been appointed.  The Minister submits that self-represented applicants in the migration cohort are routinely able to prepare and lodge judicial review applications within the timeframes mandated by legislation.

21. While I accept the Minister’s submission that there are some gaps in the applicant’s explanation, I consider that overall, the applicant has provided a cohesive and plausible narrative of events.  The criticisms directed at the applicant, including in circumstances where the Minister did not seek to cross-examine him on his affidavit, are largely unjustified.   The suggestion that the applicant, who had just turned 18, might have had the wherewithal or means to pursue a complaint to or against his former legal representatives, is especially misplaced.

1. The statutory objective is the interests of the administration of justice. There is no suggestion from the language of s 477(2) or the cases which have considered it, that such interests will only be engaged in circumstances which are exceptional or which, in respect of delay, have been exhaustively explained. In this case, the applicant’s youth and (reflecting this) history of dependence on others to guide and make decisions on his behalf, provides a satisfactory explanation for the relatively short delay in the filing of his application for judicial review. The fact that the applicant might also belong to a cohort of self-represented applicants does not, in this case, detract from this view. As Mortimer J observed in MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 at [15], although attributes such as lack of access to legal representation, unfamiliarity with the Australian legal system, insecure migration status and future in Australia, and lack of functional English might be attributes shared with many litigants in the migration jurisdiction, this is no reason to diminish their importance.

2. I consider that this factor weighs modestly in favour of the extension being granted.

   Prejudice

3. In relation to prejudice, the Minister accepts that he will not suffer any prejudice that could not be cured by a favourable costs order but, by reference to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [21], submits that the mere absence of prejudice is not enough to justify an order to extend time. The Minister (also under the heading of “prejudice”) submits that he should not be put to the burden and cost of additional litigation in circumstances where the applicant’s two proposed grounds of judicial review entirely lack merit.

4. As I propose separately to consider the question of merit, I weigh prejudice as being a neutral factor in the exercise of my discretion.

   Merit of proposed grounds

5. On the question of merit, the Minister submits that neither ground of judicial review identified by the applicant is sufficiently arguable, even on a reasonably impressionistic level.

6. In relation to ground one, which alleges (without explication), a constructive failure to review the delegate’s decision and a denial to the applicant of procedural fairness by a failure to raise critical matters and/or to extend to him a real opportunity to reply to adverse information, the Minister submits that the complaints are devoid of any meaningful particulars and, in the context of the review undertaken under Part 7AA, appear misconceived. 

7. The Minister submits, in respect of the three separate limbs to the applicant’s complaint that:

   (a)no detail is provided as to how the Authority failed to review the delegate’s decision and this complaint should fail for want of particularity alone (referring to BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24]);

   (b)section 473DA of the Act provides that Division 3 of Part 7AA is taken to be an exhaustive statement of the natural justice hearing rule. Section 473DB specifies that, subject to limited exceptions, the Authority is required to review a fast track reviewable decision on the papers. In the context of the limited review imposed by Part 7AA, there was no obligation on the Authority to raise any “critical matters” with the applicant nor has the applicant even identified what “critical matters” ought to have been raised with him;

   (c)the applicant has not identified any “adverse information” that might have enlivened the Authority’s obligation to put new information to him pursuant to s 473DE of the Act and none is apparent. Nor is there anything in the circumstances of the case that might have compelled the Authority to consider exercising its discretion under s 473DC(3) of the Act to invite the applicant to give new information. The Authority is otherwise not required to inform the applicant of specific reservations about his case and to provide the applicant with an opportunity to respond (referring to DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [72]).

8. I gave the applicant two opportunities at hearing to explain what he considered to be wrong with the decision made, or process adopted, by the Authority.  The applicant candidly stated, on each occasion, that he did not know why the decision was wrong and that he didn’t know what to say.

9. In circumstances where the applicant’s complaints were unparticularised in writing and remained so after the hearing, a conclusion that the applicant’s grounds for review, on an impressionistic evaluation, do not achieve a threshold of being arguable, is irresistible.  Indeed, failure to particularise a ground of review is a sufficient basis for dismissal, even in the context of a substantive hearing: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

10. Further, having reviewed the decision of the Authority I am unable to discern any matter that, on an impressionistic evaluation, might give rise to any arguable ground of review. 

11. The Authority engaged in an evaluation of the claims advanced by the applicant and dismissed them for reasons that closely approximated those of the delegate.  The Authority largely accepted the applicant’s factual claims but was not persuaded that they gave rise to relevant harm on an application of the refugee or complementary protection criterion.  The Authority relied on country information which, thematically, was similar to that relied upon by the delegate.  The Authority, in those circumstances was not required to identify for the applicant any “critical matters” or “adverse information”.  This was especially so in the context of a procedurally circumscribed Part 7AA review.

12. The applicant’s ground two, which contains an unsubstantiated and now historic, statement concerning assistance from Victoria Legal Aid, is incapable, whether considered impressionistically or otherwise, of giving rise to any arguable ground of judicial review.

13. For the foregoing reasons I am satisfied that neither of the grounds of review sought to be raised by the applicant warrant an extension of time.  Further, I consider that this is a case where the grounds fall comfortably within the category of having “little or no prospect of success” such that it would not be in the interests of justice to extend time, notwithstanding the weight given to other discretionary factors.

14. I will order, pursuant to s 477(2) of the Act, that the application for an extension of time is dismissed and that the applicant pay the first respondent’s costs of and incidental of this application in a fixed amount.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.

Associate:

Dated:       18 February 2022