DHW18 v Minister for Home Affairs
[2018] FCCA 2992
•11 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHW18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2992 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal that it had no jurisdiction to review a decision of a Delegate of the Minister for Immigration not to grant to her a protection visa because the Administrative Appeals Tribunal differently constituted had earlier and already reviewed the same decision of the Delegate – applicant needed a 40 day extension of time under s.477(2) of the Migration Act 1958 (Cth) to make her application to this Court – no reasonable explanation for delay and no reasonable prospects of success for any proposed substantive ground – application for extension refused and dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 477 |
| Cases cited: Bechara v Bates [2018] FCA 460 BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 |
| Applicant: | DHW18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1770 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 11 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms A. Davyskib |
| Solicitors for the First Respondent: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 28 June 2018 seeking an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
The Applicant is to pay the First Respondent’s cost of the proceeding in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1770 of 2018
| DHW18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
The Applicant is a female citizen of Malaysia aged 29 years, having been born on 7 October 1989.
By Application filed in this Court on 28 June 2018 she seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 12 April 2018 which found that it had no jurisdiction to review the decision of the Delegate (Delegate) of the First Respondent, then the Minister for Immigration and Border Protection (Minister), dated 12 September 2016 refusing to grant to her a Protection (Class XA) (Subclass 866) visa (Protection visa).
The Applicant also applies for an extension of time of 40 days under s.477(2) of the Migration Act 1958 (Cth) outside the time limit prescribed by s.477(1) for her to make a substantive application for judicial review in this Court under s.476(1).
Background
The Applicant arrived legally in Australia on 9 March 2016 on a Malaysian passport as a visitor on an Electronic Travel Authority (Class UD) (Subclass 601) visa.
She applied for the Protection visa on 18 May 2016 and in her Protection visa application form stated that she spoke, read and wrote the English language.
Claims for Protection
Essentially, the Applicant’s claims for protection were as follows:
a)She left Malaysia to get protection and help from the various problems that she had faced there.
b)She was from a poor family and was seeking more income. When a friend invited her to join a business she borrowed money from a money lending company to do so. For some five months the business went well and she was able to repay her debts, but then she was cheated by her friend and found that the business debts were not being paid and the friend was uncontactable and that the friend had escaped so that the debt collectors came to the Applicant to demand money.
c)She did not have enough money to pay the business debts. People were sent to her house to hit her and warned her that if she did not pay the debts they would burn her house. Accordingly, she had no solution but to leave Malaysia to escape the danger of attack from the money lenders.
d)She is sure that if she returns to Malaysia the debt collectors will find her and she could be killed by them for revenge.
e)She tried to make a police report and to hide in a northern state of Malaysia, but she did not receive any help from government authorities as this is a common problem in Malaysia.
Decision of Delegate
The Delegate found that if the Applicant needed protection against persecution and significant harm, the Malaysian authorities would provide the same, that she was not a refugee and Australia did not owe her protection obligations and so refused to grant a Protection visa to the Applicant.
Decision of Tribunal
On 28 September 2016 the Applicant sought merits review of the decision of the Delegate from the Tribunal. She appeared before the Tribunal on 18 April 2017 to give evidence and present arguments.
In its Decision Record dated 19 April 2017 the Tribunal found that the Applicant was not a witness of truth and that she had fabricated her material claims for the purpose of obtaining a Protection visa. It affirmed the decision of the Delegate not to grant to the Applicant a Protection visa.
On 12 March 2018, the Applicant lodged a further application for review of the Delegate’s decision with the Tribunal.
By its Decision Record of 12 April 2018 under review in this proceeding, the Tribunal found that it had no jurisdiction to review the Delegate’s decision on the basis that the Tribunal had already and previously reviewed that decision, which had resulted in the decision of the Tribunal of 19 April 2017 referred to in [9] above.
Further, in its Decision Record of 12 April 2018 the Tribunal recorded at [4] that the Applicant had, in fact, made a further 10 applications for review to the Tribunal from the same Delegate’s decision of 12 September 2016 and gave identifying references to those 10 applications. The Minister has proved most of the Decision Records resulting from these 10 applications, as well as a Decision Record dated 31 May 2018 subsequent to the Decision Record of 12 April 2018 under review, by putting them in evidence in the Court Book in this proceeding. In the Court Book are Decision Records of the Tribunal as follows:
·Decision Record of the Tribunal dated 19 June 2017 in Sydney.
·Decision Record of the Tribunal dated 23 August 2017 in Melbourne.
·Decision Record of the Tribunal dated 5 January 2018 in Melbourne.
·Decision Record of the Tribunal dated 23 January 2018 in Sydney.
·Decision Record of the Tribunal dated 1 March 2018 in Sydney.
·Decision Record of the Tribunal dated 3 April 2018 in Sydney.
·Decision Record of the Tribunal dated 31 May 2018 in Melbourne.
In each of the previous (except for that of 19 April 2017) and the subsequent Tribunal decisions, consistent with the decision under review in this proceeding, the Tribunal found that it had no jurisdiction. The Tribunals, including the Tribunal in its decision of 12 April 2018, were clearly correct in coming to that view. Even if an administrative decision-maker such as the Tribunal thinks it has made an error within jurisdiction or changed its mind, it cannot generally review its original decision: see Minister for Immigration v Bhardwaj [2002] 209 CLR 597 at 603 [7] per Gleeson CJ. Further, in Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] 76 FCR 301 at 311, Goldberg J said as follows:
… I do not consider that the Tribunal has the power to reconsider or re-open its final decision on a review determining the substantive application.
Further, in SZASP v Minister for Immigration and Citizenship [2007] FCA 771 [4] Moore J said as follows:
[4]It is necessary to first say something about the applicant's attempt to seek a second review of the delegate's decision in the Tribunal. The Tribunal's conclusion that it no longer had jurisdiction to review the delegate's decision, having already discharged its functions under the Act to review the delegate's decision, was correct: see Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30], Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [7], and Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor (1997) 76 FCR 301. The Tribunal was also correct in finding that changed circumstances did not provide any legal basis for undertaking a second review. The avenue provided by the Act to take into account changed circumstances, at least potentially, is the Minister's power to permit lodgement of a further protection visa application under s 48B of the Act.
Finally, in NBGO v Minister for Immigration and Citizenship [2007] FCA 1758 [13] Collier J said as follows:
[13]In this case it is clear that, so far as concerns the first applicant, her claims for review of the decision of the Tribunal, and her grounds for such claims have already been the subject of earlier decision by the Federal Court, and are res judicata. Further, it is clear that an attempt to re-litigate matters already determined is an abuse of process and should not be entertained by the Court. In Reichel v Magrath (1889) 14 App Cas 665 at 668-669, Lord Halsbury LC said that it would be:
“…a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceeding to set up the same case again. …it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action.”
(see also Hunter v Chief Constable of the West Midlands Police [1982] AC 529 ; [1981] 3 All ER 727; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198, the Full Court in Wilson v Commonwealth of Australia [1999] FCA 1308 at [11]-[12]; Lidden and Anor v Composite Buyers Ltd & Ors (1996) 139 ALR 549; and Thirteenth Corp Pty Ltd v State (2006) 232 ALR 491 at 500). Indeed, the patent abuse of process this case bears similar characteristics to cases dismissed by Moore J in SZASP v Minister for Immigration and Citizenship [2007] FCA 771, and I note as equally applicable to this case comments of his Honour at [1], [22] and [23].
Proposed Substantive Grounds of Attack on Decision of Tribunal
The only proposed substantive Ground asserted by the Applicant in her Application was as follows:
1.The Decision was taken without proof.
Grounds of Extension Application
The only Ground for extension of time relied on is:
1.I am having financial issue.
In considering whether or not it is in the interests of the administration of justice to grant an extension of time, the Courts have developed non-exhaustive guidelines as to the factors which are to be taken into account. Those factors include:
a)whether there has been a reasonable and adequate explanation for the applicant’s delay and the extent of the delay;
b)whether there is any prejudice to the Minister; and
c)whether the applicant’s substantive case for judicial review is reasonably arguable or has reasonable prospects of success. In relation to the assessment of whether or not the Applicants’ substantive case is reasonably arguable or has reasonable prospects of success, I ought not to travel beyond an examination of the substantive grounds beyond “a reasonably impressionistic level”.
The relevant principles applicable to an application for an extension of time have been conveniently stated recently by Perry J in Bechara v Bates [2018] FCA 460 at [17] – [18] in the following terms:
[17]The principles relevant to the exercise of discretion to grant an extension of time within which to appeal are well established: see e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19] (Perry J); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J). These may be summarised as follows.
(1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.
(2) The length of the delay is a relevant factor.
(3) The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time.
(4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.
(5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account.
[18]As to the last of these matters, I recently explained in Jamal v Secretary, Department of Social Services [2017] FCA 916 that:
12. ... it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection[2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer[1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).
(emphasis removed)
Further, as Burley J in BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 said at [17]:
[17]In considering whether an extension of time should be granted, the Court usually has regard to the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal. These factors are considered together and assist in arriving at a conclusion as to whether it is in the interests of justice for the extension of time to be granted. It is seldom in the interests of justice for an extension to be granted 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 impact on other litigants who are waiting to have their cases heard. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]-[63] (per Mortimer J); Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27].
Consideration
In my view, the Applicant has not given any adequate or reasonable explanation for the delay of 40 days. She does not explain in any way of how having a “financial issue” meant that she could not file her Application to this Court within the prescribed time. Many applicants in migration cases in this Court have financial problems and do not have the money or resources to employ a lawyer. Nevertheless, they manage to file an application in time in this Court. The mere assertion of having a financial issue goes nowhere to properly or reasonably explaining the delay.
I now turn to the issue of whether or not there is any arguable basis for her substantive Ground. In my view, there is not. In my view, the proposed ground is hopeless. It could not possibly establish that the decision of the Tribunal is affected by jurisdictional error. The Tribunal was correct in finding that it had no jurisdiction, having regard to the fact that the Tribunal, differently constituted, had already dealt with the Applicant’s application for review of the Delegate’s decision by the prior decision of the Tribunal of 19 April 2017.
In light of that decision, the Tribunal could not further review the Delegate’s decision and there would, in my view, be no utility in granting an extension of time to allow the Applicant to rely upon her proposed substantive Ground. Accordingly, the Application for extension filed in this Court on 28 June 2017 is to be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 26 October 2018
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