DMH17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1194
•13 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DMH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1194
File number(s): SYG 2450 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 13 November 2024 Catchwords: MIGRATION – Application for reinstatement of an application for extension of time – where applicant also proposes to seek leave to amend substantive grounds of review if application reinstated – where original substantive grounds lack reasonable prospect of success but proposed amended grounds do not – practical considerations and overarching purpose – proceedings reinstated on terms, with self-executing orders in event amendment not made Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Court of Australia Act 1976 (Cth) s 37M
Migration Act 1958 (Cth) s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06, 15.14, 17.05
Federal Circuit Court Rules 2001 (Cth) r 16.05
Cases cited: AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598
BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2019] FCA 2023
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475
FBS18 v Minister for Home Affairs [2019] FCAFC 196
Hossainv Minister for Immigration and Border Protection (2018) 264 CLR 123
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Nassif v Harbour Radio Pty Ltd [2024] FCA 466
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
SZUSZ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1165
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 20 March 2024
17 May 2024Place: Sydney Counsel for the Applicant: Mr S Kikkert Solicitor for the Applicant: Moya Migration Law Counsel for Respondents: Mr G Johnson Solicitor for the Respondents: Clayton Utz ORDERS
SYG 2450 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DMH17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
13 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.Pursuant to r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), Orders 2 and 4 made by the Court on 28 April 2022, are set aside.
3.Costs of the application in a proceeding filed for the applicant on 16 August 2023, are to be costs of the proceedings.
4.Leave is granted to the applicant to file an amended application for extension of time raising (at least) the proposed grounds of review set out in paragraph [31] of the written submissions filed for the applicant on 21 September 2023, by 4:00pm on 4 December 2024.
5.The applicant must serve a sealed copy of the document referred to in order 4 above on the first respondent, by 5:00pm on 4 December 2024.
6.In the event that order 4 above is complied with:
(a)the time to make the originating application in this matter is extended up to, and including, 2 August 2017 pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act); and
(b)the proceedings are to be listed for final hearing before Judge Given at a time to be fixed administratively, in consultation with the parties.
7.The applicant must file and serve a written outline of submissions (not exceeding 10 pages) and list of authorities, 14 days before the final hearing referred to in order 6(b) above, and provide a version of the former in Word format by email to the Chambers of Judge Given on the date of filing.
8.The first respondent must file and serve a written outline of submissions (not exceeding 10 pages) and list of authorities, 7 days before the final hearing referred to in order 6(b) above, and provide a version of the former in Word format by email to the Chambers of Judge Given on the date of filing.
9.If the applicant is not represented by a lawyer, then at least 2 days before the final hearing, the first respondent must file and serve an Affidavit pursuant to r 6.05 of the Rules which evidences:
(a)service of all sealed documents filed in the proceedings for the first respondent, upon the applicant; and
(b)any other correspondence in the proceedings which may be relevant to matters to be raised and/or orders which may be sought at the hearing.
10.In the event that order 4 above is not complied with:
(a)Orders 6 to 9 (inclusive) above are vacated;
(b)the application for an extension of time made on 2 August 2017 is refused pursuant to s 477(2) of the Act; and
(c)the applicant must pay the first respondent’s costs and disbursements, of and incidental to the proceedings as agreed, or failing agreement, as taxed in accordance with the Federal Court Rules 2011 (Cth).
11.Liberty to apply on 1 day’s notice.
THE COURT NOTES THAT:
A.For the purposes of order 9(a) the annexures need not reproduce the sealed Court documents in full.
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 GIVEN:
The applicant commenced these proceedings on 2 August 2017 by an application for an extension of the time in which to seek judicial review of a decision of the Immigration Assessment Authority (Authority), refusing to grant him a Safe Haven Enterprise visa (visa) (EOT application).
On 28 April 2022, the Court dismissed the proceedings for want of appearance when the applicant failed to attend the hearing of that EOT application. Before the Court now is an application in a proceeding, filed on 16 August 2023, by which the applicant seeks that the orders made on 28 April 2022 be set aside in order that the proceedings can be reinstated and the EOT application therefore be heard and determined (reinstatement application).
BACKGROUND
The background to this matter is derived from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
The applicant is a Sri Lankan citizen of Tamil ethnicity and Hindu faith who arrived in Australia on 21 October 2012, as an unauthorised maritime arrival (CB 39 and 44).
On 2 February 2016, the applicant applied for the visa (Court Book (CB) 22 to 108). The applicant claimed to fear harm as a Tamil from Sri Lanka who was involved with the Eelevar Democratic Front (Popular Front EROS) (EROS), and that he had faced previous harm from unknown Tamil paramilitary groups.
A delegate of the Minister interviewed the applicant on 2 May 2016, before making a decision on 13 October 2016 to refuse to grant the applicant the visa (CB 170 to 186). The delegate’s decision was referred to the Authority for review on 19 October 2016 (CB 187 to 188).
The Authority’s decision
The Authority said that in making the decision it had taken into account the DFAT country report on Sri Lanka dated 24 January 2017, which post-dated the delegate's decision (CB 191 at [5]).
The Authority did not accept as credible the applicant's claims regarding his political opinion and activities, for reasons including that the applicant:
(a)claimed that his brother's father-in-law (Mr X) asked the applicant to campaign for him, but that Mr X had not faced any difficulties due to his work. The Authority took the view that the absence of harm to Mr X undermined the applicant's claims to fear harm because of his pro-EROS political opinion (CB 193 at [12]);
(b)gave inconsistent evidence about when he became a member of EROS, the identity of the people who allegedly targeted him, why he was targeted and what occurred the night he was threatened (CB 193 at [13] to [14]); and
(c)raised a new claim at the end of the SHEV interview that he was involved in a petrol-bombing. The Authority considered a petrol-bombing to be a memorable event and accordingly, not one which the applicant would genuinely have forgotten to raise earlier (CB 194 at [15]).
The Authority was willing to accept that the applicant had been harassed and assaulted in the past by Sri Lankan security forces, as part of general security operations. Referring to country information which indicated that the overall situation for Tamils has improved since the end of civil conflict in 2009, and noting that the applicant did not claim that he or his family had any links to the LTTE, the Authority was not satisfied that the applicant has a profile which would bring him to the attention of the Sri Lankan authorities as someone connected to the LTTE (CB 195 at [22] to [23]).
The Authority found that, if returned to Sri Lanka, the applicant would likely be fined under the Sri Lankan “Immigrants and Emigrants Act” and might, as a result, be briefly detained in poor conditions. However, the Authority found that such treatment would be pursuant to a non-discriminatory law of general application and did not rise to serious or significant harm. In coming to this conclusion, the Authority relied on a finding that any harm would not be intended by the authorities (CB 195 at [41]).
APPLICATION TO THIS COURT
As noted above, these proceedings were commenced by the filing of the EOT application. At the time the EOT application was filed, the applicant appeared to be unrepresented, albeit the footer to the application form indicates that the application itself was prepared by a third party. By the EOT application the applicant provided a postal address in New South Wales and a particular Gmail address as being his email address for service (first Gmail address).
Procedural history
The proceedings were initially docketed to another Judge of the Court (first primary Judge). On 15 September 2017, the applicant appeared before the first primary Judge for directions, on which occasion the Court made orders for the preparation of the hearing of the EOT application for hearing. The applicant was granted leave to file any amended application by 27 October 2017 with the proceedings listed for callover before the first primary Judge on 16 March 2018.
On 12 March 2018, the first primary Judge vacated the callover fixture and stood the matter over generally to be further called-over, or given a hearing date in due course. The proceedings were later transferred to the central migration docket.
On 16 March 2018, the applicant filed a Notice of Address for Service (2018 NOAS) which provided a postal address in South Australia and a different Gmail address as being the applicant’s email address for service (second Gmail address).
On 22 December 2021, the proceedings were docketed to me and a Registrar of the Court made orders listing them for hearing of the EOT application on time on 28 April 2022, together with ancillary orders for the preparation of that application for hearing (2022 Orders). The 2022 Orders, together with a listing notice with details of the hearing date and time, were sent to the parties by the Registry on 19 January 2022. To the applicant, those documents were sent both by post to the applicant’s South Australian address and email to the second Gmail address, by reference to the 2018 NOAS. The parties were advised by the listing notice that the mode and location of hearing would be notified to them closer to the date of hearing. This was because, following the COVID-19 pandemic restrictions, many hearings were still being facilitated online. Ultimately, because the applicant appeared to be located in South Australia, and the Court would be presiding from Sydney, the Court determined that the best method of hearing would be online, using Microsoft Teams (MS Teams).
On 27 April 2022, my Associate sent the parties the link to the MS Teams hearing for use the next day. While initially that email was sent by email to the first Gmail address, the error was rapidly identified and the MS Teams link was re-sent a very short time later, to the second Gmail address.
On 28 April 2022, the applicant failed to attend the hearing. An interpreter in the Tamil language was present in the MS Teams forum throughout. Counsel who appeared for the first respondent on that occasion sought orders for the dismissal of the proceedings for want of appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law)Rules 2021 (Cth) (Rules), and an order for costs.
Being satisfied that the applicant had been properly made aware of the time, date and mode of hearing by both the Court and the first respondent, and that the solicitor for the first respondent had also foreshadowed the applicant of the consequences should he fail to attend, the Court acceded to the first respondent’s application and made the following orders:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The application for an extension of time filed on 2 August 2017 is dismissed pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“Rules”).
3.The first must respondent serve:
a.A sealed copy of these orders; and
b.A copy of rule 17.05 of the Rules;
on the applicant by close of business on 29 April 2022.
4.The applicant pay the first respondent’s costs and disbursements, of and incidental to these proceedings, fixed in the amount of $3,737.
REINSTATEMENT APPLICATION
On 16 August 2023, the reinstatement application was filed for the applicant by his current solicitors. By the reinstatement application, the applicant seeks orders that the Court set aside or vary the orders referred to in the preceding paragraph (presumably pursuant to r 17.05(2)(a) of the Rules). Curiously, an additional order sought to dispense with r 15.14(3)(b) of the Rules, which rule pertains to the requirement for a non-English speaking jurat to be used for persons who do not have an adequate command of the English language.
The reinstatement application was initially listed for hearing on 20 March 2024, with orders made for the filing of submissions in advance of that date. That hearing event was facilitated by MS Teams, this time because the applicant’s legal representatives were located in South Australia and the Court was again presiding from Sydney.
At the first hearing of the reinstatement application each of the parties was represented by their respective Counsel. The first hearing of the reinstatement application adjourned in circumstances where there appeared to be anomalies in the dates on which various Affidavits had been executed. It is not necessary to detail those matters because, after further evidence was filed and enquiries made of the Registry by the Court, I am satisfied the anomalies were adequately explained and do not otherwise affect the matters which the Court must resolve in determining the reinstatement application.
On 17 May 2024, the hearing of the reinstatement application proceeded to finality. Each party was again represented by their respective Counsel who, in addition to having prepared written submissions in advance of the hearing, made further submissions at hearing. I have been assisted by all the submissions made for the parties.
Evidence
In support of the reinstatement application the applicant relies on the following Affidavits, each of which were read without objection:
(a)Affidavit of the applicant affirmed on 18 August 2023 (applicant’s August Affidavit);
(b)Affidavit of Daniel Fernando Moya (the applicant’s solicitor) affirmed on 18 August 2023 (first Moya Affidavit); and
(c)Affidavit of Daniel Fernando Moya affirmed on 26 April 2024 (second Moya Affidavit).
Neither the applicant nor his solicitor was required for cross-examination.
The Court Book prepared by the solicitors for the first respondent was tendered by the applicant and marked Exhibit “1A”.
The applicant relied on written submissions filed on 21 September 2023. The first respondent relied on (very brief) written submissions filed on 20 April 2022[1] in advance of the hearing of the application for extension of time, as well as additional submissions in relation to the reinstatement application filed on 27 September 2023.
[1] Prepared by different Counsel than ultimately appeared at the reinstatement application hearing
Principles
The principles in respect of reinstatement are relatively well settled. The discretion of the Court to set aside its orders is one which requires the Court to consider whether or not it is in the interests of justice to reinstate the application: see FBS18 v Minister for Home Affairs [2019] FCAFC 196 (FBS18) at [50] per Flick, Robertson and Lee JJ. In FBS18, the Full Court of the Federal Court referred to MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] in which Ryan J considered the principles relating to an application for reinstatement of a matter dismissed upon the non-appearance of an applicant as being:
(a)whether there is a reasonable excuse for the absence;
(b)the existence and nature of any prejudice to the other party should the reinstatement be ordered and, if present, how any such prejudice might be alleviated; and
(c)whether the application for reinstatement has a reasonable prospect of success in the proceeding, with the grounds ordinarily to be taken at an impressionistic level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J (as her Honour then was) and DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475.
The factors set out above are not exhaustive, but do consistently arise for consideration in the exercise of the Court’s broad discretion to reinstate: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] per Mortimer J (as her Honour then was), noting the caution expressed by the Federal Court in AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [32] where McKerracher J said the following in relation to the antecedent (and relevantly identical) provision of the Federal Circuit Court Rules 2001 (Cth):[2]
…that whatever assistance that may be gleaned from earlier judicial decisions considering the discretion to set aside orders made in the absence of a party, those authorities can only operate as a guide to the exercise of the discretion in r 16.05.
[2] Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth)
In some cases, additional factors such as the delay between the date of dismissal and the time at which an applicant sought reinstatement may be relevant, together with any explanation provided for that delay. While delay in applying to the Court is not a mandatory consideration in every case (see AHN17 (supra) at [33]), it can be a relevant factor to be weighed in the exercise of the Court’s discretion. That question of delay arises in this case.
Does the applicant have a reasonable excuse for not attending the hearing on 28 April 2022?
By the applicant’s August Affidavit he says:
(a)he received a letter from the first respondent’s solicitors on 26 April 2022 (which forms Annexure “AMA-1” to his Affidavit (April letter)). He asked a friend to interpret the April letter to him. The friend told him that there was a date given in the April letter, but that the letter did not say he needed to attend Court. Rather, the friend told him that he should expect a phone call from a free lawyer. It was not until 16 August 2023 that the letter was re-interpreted to the applicant that he became aware that its content are different from what his friend told him;
(b)on or about 25 April 2023, the applicant learned about the death of his mother in Sri Lanka, and he experienced severe grief as a result. The applicant annexes a translated version of his mother’s death certificate;
(c)when the day came to attend Court the applicant says, “I had completely forgotten about my case”;[3]
(d)from April 2022 until about April 2023, the applicant was grief-stricken because of the death of his mother and then, a short time later, the death of his aunt. The applicant had limited motivation and resources. The applicant says that in or about early April 2023:[4]
I started thinking about my court case and asked some friends what I should do. I was then put in touch with a lawyer to get advice about what options I had.
[3] Applicant’s August Affidavit at [12]
[4] Applicant’s August Affidavit at [16]
By the first Moya Affidavit the applicant’s solicitor deposes to steps taken from April 2023 until August 2023 to obtain documents (including by a Freedom of Information request) and instructions, including difficulties in obtaining interpreters to assist in communication between the solicitor and the applicant.
The applicant’s explanation for why he did not attend the hearing on 28 April 2022 is somewhat inconsistent. By [9] of his Affidavit he suggests that he was misled by the friend who interpreted the April letter to him, telling him he did not need to attend the hearing on 28 April 2022 and that as such, he was unaware of the Court event. However, by [12] of his Affidavit the applicant says he forgot about the Court fixture upon learning of the death of his mother. Implicit within having forgotten about the hearing is that the applicant must first have been aware of it. This suggests the applicant did know and understand that he was required to attend Court from the April letter.
While remarking on the aforementioned inconsistency, the first respondent does not take issue with the explanation concerning the applicant receiving news of the death of his mother and accepts that this would have caused the applicant some particular anguish and might have led to him forgetting about the hearing. However, the first respondent says that, even accepting the applicant’s assertions of grief and depression following the deaths of his mother and aunt, this should not be accepted as explaining why this rendered the applicant incapable of seeking to reinstate for a period of such magnitude, and that this weighs strongly against reinstatement.
Even taking into account language barriers, it is difficult to fully accept that the applicant was unaware of the hearing on 28 April 2022, given the number of ways he was notified by the Court, including having been sent the MS Teams link the day before the hearing, which would likely have alerted him to the event by the consistent inclusion of the date and time in correspondence. Noting that the applicant’s evidence was not challenged under cross-examination, I am prepared to accept that there may have been some general confusion on his part. However, I am not persuaded that the applicant was misinformed by his friend as to the content of the April letter. Rather, the applicant was aware there was a hearing event on 28 April 2022 and knew he was required to attend it.
However, I also accept that in his understandable state of grief upon learning of the death of his mother, he may have forgotten to attend. I am satisfied therefore, that the applicant’s explanation for his failure to attend the hearing was reasonable. Again, noting that that the first respondent did not seek to challenge the applicant’s evidence as to the effect his grief had upon him, I reject the submission at [33] above that the state of the applicant’s grief did not extend to explaining the period of delay in seeking reinstatement. I am prepared to accept that the period of delay was in part by reference to the applicant’s grief and, thereafter, that there were practical challenges encountered, to which the applicant’s solicitor has deposed (which was also unchallenged by the first respondent).
Accordingly, I am satisfied that the applicant’s explanation for the failure to attend the hearing of the EOT application, and to have made the reinstatement application in a timely manner, is reasonable. This weighs in favour of reinstatement.
Prejudice to the parties
In terms of prejudice to the parties, the first respondent did not contend there was any prejudice to him if the matter were reinstated in this case. Conversely, Counsel for the Minister also acknowledged that if the proceedings were not reinstated, the consequences are significant for the applicant. I accept these submissions and am of the view that the prejudice to the applicant if the proceedings are not reinstatement is more significant than to the Minister if they were to be. This also weighs in favour of reinstatement.
Prospect of success of extension of time application if reinstated
Next arises the question of whether there is a sufficiently reasonable prospect of the application for extension of time being granted, such that this would warrant the proceedings being reinstated.
Relevant considerations in deciding whether to grant an extension of time
Section 477(2) of the Migration Act 1958 (Cth) (Act) gives the Court power to extend the time-frame within which an applicant is required to file an application for judicial review of the Tribunal’s decision before this Court, where the Court is satisfied that it is necessary in the interests of the administration of justice to grant the extension.
There are also no prescribed factors to which the Court is required to have regard in determining whether it is necessary in the interests of the administration of justice to extend time. However, the factors to which the Court will ordinarily have regard, are similar to those which inform the exercise of discretion to reinstate and include the length of the delay, whether the applicant has an adequate explanation for the delay, whether the respondents would face any prejudice if an extension of time were granted and the merits of the proposed substantive application: see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ, Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 (Katoa) at [12], [17] to [19] per Kiefel CJ, Gageler J (as his Honour then was), Keane and Gleeson JJ and [39] to [40] and [49] per Gordon, Edelman and Steward JJ.
Length of the delay
Pursuant to s 477 of the Act, any application to this Court for review of the Authority’s decision was required to be made within 35 days thereof which, by reference to the date of the Authority’s decision (on 23 June 2017), was 28 July 2017. Accordingly, the application to this Court made on 2 August 2017 was 5 days out of time. By his written submissions filed in April 2022, the first respondent says that while this is a short delay and there is some explanation for it, the proposed substantive grounds of review are insufficiently meritorious to justify an extension of time.
I agree that the delay is relatively short.
Explanation for the delay
By the EOT application, the reason for the delay was given as being (case and errors in original, anonymisation added):
HE WAS HELD UP IN ADELAIDE FOR A WEEK. DUE TO SOMEONE BROKEN INTO HIS APARTMENT. POLICE REPORT SHOWS INCIDENT. [Reference number]
By the applicant’s August Affidavit, a more fulsome explanation is now provided. The applicant says that, on or about 13 July 2017, he became aware that he had been unsuccessful before the Authority and that he had only 15 days remaining in which to seek review in this Court. The applicant said that he attempted to telephone his (then) representative but could not reach him. On 2 August 2017, the applicant filed the EOT application with the assistance of the third party referred to at [11] above. The applicant makes no attempt to explain the provenance of the explanation in the preceding paragraph relating to an alleged break-in, nor is that explanation seemingly still advanced as being the basis for why the judicial review application was not made in time.
The applicant says that he attempted to contact the person who had assisted him with his application. Even if he was unable to reach said person it does not particularly explain why the application could not have been made in time, in particular given the applicant saying that he knew about the Authority’s decision (for more than 2 weeks) before the date by which he was required to apply to the Court for review. I am not satisfied that the applicant’s explanation as now proffered by his Affidavit evidence reasonably explains why the application was not made in time, albeit noting that the period of delay is short. Overall, these factors would weigh against time being extended.
Prejudice to the Minister
The first respondent’s written submissions about the EOT application are silent on the question of prejudice. As such, it is assumed none is claimed, which would accord with the Minister’s position in respect of prejudice in relation to the reinstatement application.
It is also well established that an absence of prejudice does not, without more, suffice to justify the grant of an extension: BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2019] FCA 2023 at [18] per Beach J. In SZUSZ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1165 at [58] this Court observed that:
If time were not to be extended, the applicant would be shut out from judicial review of the Tribunal’s decision, with there being no right of appeal to the Federal Court of Australia pursuant to s 476A(3) of the Act. I consider that in the instant case the prejudice to the parties is balanced sufficiently to be neutral, subject to any adjustment to that assessment following consideration of the merit of the applicant’s proposed grounds of review. That is because the prejudice to the applicant of being denied the opportunity of judicial review on a final basis would be more significant if the grounds he was seeking to agitate have merit.
I would apply the same approach in the instant case. Accordingly, the question of prejudice will be revisited after assessing the merits of the application.
Merits of the EOT application
The Court must also determine how to proceed in the assessment of the prospects in circumstances where the applicant’s solicitors foreshadow seeking leave to amend the proposed grounds of review, if the proceedings were to be reinstated.
The first respondent says that, by presaging an application for leave to amend the EOT application to raise two new proposed substantive grounds of review, the applicant implicitly concedes that the originating EOT application lacks merit and has prospects which are insufficiently strong to justify reinstatement. The first respondent does, however, acknowledge that in any proceeding a party is entitled to seek the leave of the Court to amend, and that one factor in deciding whether to exercise the discretion to grant such leave the Court will consider the relative strength of the proposed grounds.
The standard level at which assessment of the merits of substantive grounds in an application for extension of time is undertaken, is relevantly set out in Katoa (supra) per Kiefel CJ, Gageler, Keane and Gleeson JJ, where their Honour said the following at [17] to [19]:
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.
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.
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.
It was open to the parties (but more particularly the first respondent) to contend that where the task of the Court is to consider the exercise of its discretion to reinstate an application for extension of time (which is itself an application to the Court for exercise of a similar discretion), that it would be appropriate (and possibly even necessary) to examine the proposed substantive grounds of review at some greater level of detail so as to reach a conclusion as to whether they have sufficient prospects. Given that the exercise of discretion in the EOT application would require a similar assessment in due course, to repeat that process when a more detailed initial assessment might resolve the question sooner could, arguably, prevent an unnecessary expenditure of time for all the parties and the Court, having particular regard to the overarching purpose of this Court’s practice and procedure: see s 190 of Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act) and Nassif v Harbour Radio Pty Ltd [2024] FCA 466 at [44] per Abraham J.[5]
[5] Referring to the equivalent provision of the Federal Court of Australia Act 1976 (Cth): s 37M
However, the parties each contended that in this case the Court should only consider the merits of the substantive grounds at an impressionistic level. Accordingly, I have done so.
The currently raised grounds of judicial review
The substantive grounds of review in the originating EOT application are as follows (errors in original):
1.Recently his cousin brother beaten to death by SriLankan Military
2.There are fresh evidence that Srilankan Military search for the applicant.
3.His family fled from the area, due to SriLankan Military regular visit and harrament.
4.The applicant also face same fate as his cousin brother if he detained by SriLankan Military.
It is unnecessary to consider whether, by advancing proposed amended grounds of review, the applicant should be taken to tacitly accept that the grounds referred to in the preceding paragraph do not have a reasonable prospect of success. That is because, even at the most impressionistic level (and whether the applicant acknowledges as much (or not)), the aforementioned grounds are simply not sufficiently arguable. Each of the four substantive grounds of review in the originating EOT application plainly advance the applicant’s protection claims, the assessment of which is no part of this Court’s task. Being grounds seeking impermissible merits review, they lack any reasonable prospect of success. If the applicant were to advance only these grounds, then I would conclude they lack sufficient merit to warrant consideration on a final basis, and this would weigh against time being extended.
The applicant instead seeks to have the Court consider the proposed grounds of review which he would seek to advance. In the circumstances of this case, I am satisfied that it is appropriate to do so in fairness to the applicant and in order to ascertain whether they proposed grounds would, if leave were granted, have a sufficient prospect of success even when considered at an impressionistic level such that the EOT application might itself have a sufficient prospect. It also accords with the overarching purpose (see [52] above).
By his written submissions, the applicant says that if the proceedings were reinstated he would seek to amend his application for extension of time to advance the following, substantive grounds of judicial review:
1. The second respondent failed to consider the review material provided by the Secretary pursuant to section 473CB of the Migration Act 1958 (Cth) (‘the Act’), when reviewing the decision of the first respondent and fell into jurisdictional error.
Particulars
a. The second respondent made no findings of fact in relation to letters attesting that the applicant was a member of the Eelaver Democratic Front (Popular Front EROS) (EROS), signed by the Secretary General of that party.
b. The second respondent’s Decision and Reasons reveals no consideration of the EROS letters attesting to the Applicant’s claimed political involvement in the EROS party.
c. The second respondent was required to review the decision of the first respondent’s delegate by considering the review material pursuant to s 473DB(1). Its failure to do so deprived it of relevant and cogent information and infected its ultimate conclusion: that the applicant had fabricated his political involvement to bolster his protection claims.
Further or in the alternative:
2. The applicant was bound to review the decision on the papers: s 473DB. This was its primary requirement. The second respondent was mandated to have regard to the review material provided to it by the Secretary and by its failure breached the strict requirements of the exhaustive statement of the requirements for the natural justice hearing rule governing the conduct of the review
In respect of the relative, merit of these grounds, the applicant contends:[6]
(a)the proposed amended application is capable of meeting, at the impressionistic level, the threshold as to reasonable prospects of success because ultimately to determine it, the Court would need not only to assess error but also materiality, citing Cf Hossainv Minister for Immigration and Border Protection (2018) 264 CLR 123 at [35]; and
(b)that while the submission in [58(a)] above does not seek to advance or develop the grounds in detail, they are on their face reasonably arguable, noting that there is a firm distinction “between grounds that are hopeless and destined to fail, and those which are properly described as weak”, citing MZABP (supra) at [65] per Mortimer J (as her Honour then was).
[6] Applicant’s written submissions filed 21 September 2023 at [32] to [33]
The first respondent says that the proposed amended grounds each, in essence, claim that the Authority failed to comply with ss 473CB and/or 473DB of the Act by allegedly failing to consider letters provided by the applicant in support of his claimed involvement in EROS (CB 80 to 87), and simply lack merit.
Consideration
The proposed grounds turn upon the Court reaching a conclusion that the absence of reference/s to particular letters (being documents attesting to the applicant’s membership/involvement in the EROS party) in the Authority’s decision, means that the Authority overlooked the letters entirely. The applicant contends that this alleged oversight means the Authority failed (in various ways) to conduct the review required of it by the Act and thereby erred.
The first respondent acknowledges that the Authority’s decision does not make express reference to the letters, but says that the failure to refer to them does not, necessarily, given rise to error.
On the material before the Court, I am satisfied that the proposed grounds are sufficiently arguable, at an impressionistic level and give rise to the following questions which would require consideration:
(a)whether the Court can be satisfied that the lack of reference to the EROS letters does, in fact, mean they the letters were not considered by the Authority;
(b)what the consequences of any such oversight/failure to consider might be in terms of error; and
(c)as the applicant correctly observes (and no doubt upon which the first respondent would wish to make submissions), the question of the materiality of any such a failure to the review, so as to ascertain whether any error was jurisdictional.
Given the centrality to the applicant’s claims that his alleged involvement with EROS had, a failure to consider evidence in this regard may give rise to error, if established. That is particularly so given the findings of the Authority summarised at [8] above. There is nothing on the material before the Court which would enable a conclusion that the proposed grounds lack sufficient prospects to foreclose further argument about the errors alleged. The Court cannot be satisfied, at an impressionistic level, that the grounds may fail. The import of the first respondent’s submission that the grounds are weak, does not foreclose that they are arguable: see MZABP (supra) at [65] per Mortimer J (as her Honour then was). I am satisfied that the proposed grounds of review are sufficiently arguable as to warrant further and final consideration. This weighs in favour of time being extended if these are the grounds to be advanced.
Conclusion as to the merits of the application for extension of time
The applicant’s explanation for why his judicial review application was not made within the requisite 35-day period has been found not to be reasonable. However, the period of delay was relatively short (a matter acknowledged by the first respondent) and the Court has found that at an impressionistic level, the proposed grounds of judicial review are sufficiently arguable. The latter factor would weigh in favour of time being extended such that I am also satisfied that the question of prejudice also tends in favour of time being extended.
Overall, the EOT application would (if amended in the manner proposed) have merit for the purposes of assessing that factor in terms of the reinstatement application. I will return to the corollary of that conclusion in terms of the EOT application itself, shortly.
Balancing of factors relevant to the reinstatement application
In respect of the application for reinstatement, I have concluded that each of the following factors weigh in favour of reinstatement:
(a)the applicant having a reasonable excuse for not attending the hearing on 28 April 2022, despite having taken a significant period to bring the reinstatement application;
(b)the EOT application having sufficient merit overall (by reference to the proposed amended substantive grounds of review) so as to warrant its consideration if the amendment is made; and
(c)that, on balance, the question of prejudice would therefore also favour reinstatement (again, on the basis that there is to be an amendment).
Accordingly, I am satisfied in the exercise of my discretion that the orders made on 28 April 2023 dismissing the application for want of appearance be set aside pursuant to r 17.05(2)(a) of the Rules in order to grant the applicant the opportunity to amend his application for extension of time (see [69] to [72] below).
Among the orders made on 28 April 2022 was an order that applicant pay the first respondent’s costs and disbursements of the proceedings as at that date (fixed in the amount of $3,737). I will set that order aside also. However, if the applicant were ultimately unsuccessful in these proceedings, it will be open to the first respondent to seek costs of the entirety of those costs once more.
THE WAY FORWARD
As was observed at [52] above, there is considerable duplication in the assessment of the merits of an application for extension of time and an application for reinstatement. In concluding that the proceedings should be reinstated the Court has already expressed a view as to the EOT application in its present form (see [55] above), and about the arguability of the proposed substantive grounds (see [62] and [63] above).
In all the circumstances of this case, I am of the view that there is utility in reinstating the proceedings in order that the applicant’s EOT application can be advanced in the proposed amended form. The applicant will be granted leave to amend to raise the grounds which are set out in paragraph [31] of the written submissions filed for him on 21 September 2023. This does not prevent the applicant from raising additional grounds, however given that the exercise of the Court’s discretion to reinstate was reached by reference to those grounds, it seems appropriate that they at least be a basis upon which any amendment is made. In the event that the applicant does so within the time provided, then I am also of the view that having regard to the views expressed at [62] and [63] above, that there should be a final hearing in respect of the proposed amended grounds.
I see little utility in putting the parties to further expense, and occupying Court resources to re-agitate an amended EOT application which has already essentially been considered. The interests of the administration of justice are served in this case by facilitating the resolution of these proceedings in a manner consistent with s 190 of the Court Act and r 1.04 of the Rules. Accordingly, in the event the applicant avails himself of the grant of leave, then in the exercise of my discretion under s 477(2) of the Act and having regard to s 190 of the Court Act, in the present case I am satisfied that it would be necessary in the interests of the administration of justice to make the order extending time also, on the basis of the proposed amended grounds.
In the event the applicant fails to avail himself of the grant of leave, the extant application in the proceedings would be the originating EOT application. As discussed at [55] above, that application lacks a reasonable prosect of success. As such, if it were the sole remaining application in the proceedings, the weighing of factors in relation to it would differ from those expressed at [64] above. Where the explanation has not found to be reasonable and the grounds lack merit (and the question of prejudice then tending against time being extended), it would not be necessary in the interests of the administration of justice to extend time, and it should be refused.
CONCLUSION
The application for reinstatement having succeeded on the basis discussed above, orders will be made setting aside the operative orders which dismissed the proceedings on 28 April 2022, being orders 2 and 4 (noting that other ancillary orders made on that date need not be disturbed).
Leave is granted to the applicant to amend his application, on terms. In the event the applicant avails himself of the grant of leave, the proceedings will be listed for final hearing before me at the first available opportunity which is mutually convenient to the Court and the parties, noting that each of them is represented by Counsel and there is likely utility in meeting the availability of those practitioners to assist in the ultimate resolution of the proceedings as quickly, inexpensively and efficiently as possible.
While the applicant has been successful in seeking reinstatement, I am of the view that the costs of that event should fall as costs in the cause and for determination with the outcome of the proceedings. I will make orders to this effect. In the event that the applicant fails to avail himself of the grant of leave and the EOT application is thereby refused by reference to the self-executing orders, the first respondent will be entitled to the costs of the proceedings.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 13 November 2024
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