DMI16 v Minister for Immigration and Anor

[2017] FCCA 1476

FEDERAL CIRCUIT COURT OF AUSTRALIA

DMI16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1476

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – application for an extension of time – application for judicial review made significantly outside of time – whether extension should be allowed in the interests of the administration of justice – whether grounds of application contain merit – no jurisdictional error on review of Tribunal’s decision – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), s.477

Cases cited:

Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30

Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470; [2000] HCA 67

Vella v Minister for Immigration & Border Protection (2015) 90 ALJR 89; [2015] HCA 42

Applicant: DMI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3198 of 2016

Judgment of: Judge Smith

Hearing date: 31 May 2017

Date of Last Submission: 31 May 2017

Delivered at: Sydney

Delivered on: 31 May 2017

REPRESENTATION

Counsel for the Applicant: Mr A. Silva

Counsel for the Respondents: Ms R. Francois

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The application for an order under s.477(2) is refused.

2. The application is otherwise dismissed.

3. The applicant is to pay the first respondent’s costs fixed in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3198 of 2016

DMI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal[1] made on 6 March 2015. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s protection visa. Section 477(1) of the Migration Act 1958 (Cth) (Act) requires such an application to be made within 35 days of the date of the decision.  In this case, the decision having been dated 6 March 2015, the last date for making an application for judicial review was 10 April 2015.  However, the application was not lodged until more than 19 months later on 17 November 2016. 

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. The Court has power to make an order extending that period under s.477(2) of the Act on two conditions: the first condition being that an application for the order has been made in writing specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. That condition has been complied with in this case, and there is no issue about that. The second condition is that the Court is satisfied that it is necessary in the interests of the administration of justice to make the order, and that is the sole issue in the proceedings before me.

3. The question of what must be considered by the Court, in determining what is necessary in the interests of the administration of justice, was a matter of some submissions before me at the hearing of this matter.  Generally speaking, there are a number of matters, which, similarly with other powers to extend time, include the extent of the delay and the reasons for it, any prejudice to the respondent, the impact on the applicant if the time is not extended, the interests of the public at large and the merits of the substantive application.  The first and second of these, are in my view, the most important in this case. 

4. The first respondent has not put forward any prejudice. Whilst Counsel for the applicant suggested that was a positive fact to be taken into account, I disagree.  I find that it is a neutral matter.  If there were some prejudice, of course, that would be a negative matter. 

5. The applicant’s Counsel sought to adduce evidence concerning the impact on the applicant if the time was not extended.  That evidence related to circumstances concerning actual and potential attacks on Coptic Christians in Egypt. 

6. I rejected the tender of that evidence because in my view, it is not part of the process of this Court when considering whether to exercise the power under s.477(2) of the Act, to make any findings of fact of what might occur to the applicant. Nevertheless, even if I had admitted it, it would not have weighed large in my consideration. I accept that it is always possible that an applicant who has once been granted a protection visa or at least applied for a protection visa might face harm upon return to his or her country of origin.

7. The real matters that outweigh those factors however, in this case, is the applicant’s significant delay of 19 months in lodging his application and the question of the merits of the decision.  Concerning the merits of the decision, Counsel for the applicant advanced the proposition that unless the applicant has either done nothing, or is otherwise somehow negligent, and if there is an arguable case, then an extension ought always be given.  I disagree with that proposition.  All of the factors must be taken into account and balanced one against the other. 

8. If, for example, there is a miniscule delay but only a barely arguable case, an extension might be granted, whereas a barely arguable case might not warrant an extension where there is a considerable delay.  In terms of the extent of the delay, in Vella v Minister for Immigration & Border Protection (2015) 90 ALJR 89; [2015] HCA 42 (Vella), Gageler J, by reference to the earlier decision of McHugh J in Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470; [2000] HCA 67, citing Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30 (Gallo), said that extending the period for an application by some 16 months required that there be something exceptional about the case. 

9. In Gallo, McHugh J had said that the case would need to be exceptional, before the time commencing process was enlarged by “many months”.  In this case, the delay is 19 months, which is many more than “many months” and more than the 16 months considered by Gageler J in Vella;  thus, I proceed on the basis that the case has to be established as something exceptional in order for there to be an extension of the period. 

10. In respect of the reasons given for the delay, the applicant has sworn an affidavit in which he explained that he was given a copy of the Tribunal’s decision a few days after the decision and was “really upset” by the decision.  He thought it was wrong, and he wanted to challenge the decision.  The applicant understood that he “could go to Court or the Minister”, but at the time, he was “suffering financially so thinking of going to Court was not easy”.

11. In effect, the applicant said that he chose the financially easier way and thought that he could go to Court later.  In the meantime, his son had approached a barrister for advice, who had told him that the only real option for the applicant would be to seek review of the Tribunal’s decision in the Federal Circuit Court, and that any application would need to be filed within 28 days of the representative receiving the decision, namely by 3 April 2015. 

12. That advice was incorrect in that the time for filing was in 35 days, not 28, however, the error was on the conservative side rather than on the liberal side. The applicant then did apply to the Minister for the exercise of his discretion under s.417 of the Act, with the help of his lawyer, a migration agent. That application was not determined for some time, and the applicant was notified that the request had been finalised on 21 October 2016. The applicant applied for review some four weeks later.

13. In my view, that is not a reasonable excuse for the significant delay. The applicant has, in effect, treated the process of the Court as a plan B in the event that the cheaper course of applying to the Minister failed. That, in my view, is inconsistent with the time imposed by s.477(1) of the Act, which is to act in the best interests of the Australian public by expediting as far as possible, migration matters and particularly in respect of matters where the person will remain in Australia without a substantive visa pending the outcome of the review.

14. I turn then, to consider the merits of the case. 

15. There are three grounds pressed by the applicant.  In order to understand those grounds, I will set out a brief summary of the background and the Tribunal’s reasons, which I will adapt from the first respondent’s submissions, in particular, [8] through to [20], which I accept as a reasonable summary of the relevant facts in the case The first ground pressed by the applicant is:

    The Tribunal made jurisdictional error by failing to inquire since it failed to conduct an interview with the applicant’s son Mark who was the subject of the death certificate which was a major credibility concern to the Tribunal. 

    Mark, it may be noted, was not in fact dead and it was for that reason that he could have been contacted.

16. There are two difficulties with this ground.  The first is that when the applicant was invited to attend at a hearing, he was given a document entitled “Response to Hearing Invitation”. One of the questions in this Response was:

    I,we request that the Tribunal take oral evidence from another person.

    The response to that question was “No.”  If the applicant had given another response, the Tribunal would have had to consider it and then determine whether or not it would take evidence from the person referred to in the request.  That is not necessarily an insuperable difficulty. 

17. The insuperable difficulty, in my view, arises from what occurred at the Tribunal hearing.  There, the Tribunal asked whether the son was “available by any chance”[2].  When the Tribunal was told he was available, it inquired about the time difference.  It was ascertained that it was, at the time of the Tribunal hearing, 3.59am in Egypt and that everybody was asleep.  The Tribunal then said[3]:

    We can’t really call him in the middle of the night, unfortunately.  All right?

    The response to which from the applicant was[4]:

    [2] Transcript 24.45.

    [3] Transcript 25.15.

    [4] Transcript 25.18.

    Well, that’s all right.

18. The applicant did not make any complaint about the failure by the Tribunal to take evidence from his son in Egypt, and nor did his migration agent.  In those circumstances, I cannot find that there is any error in the Tribunal’s failure to take that evidence, which might have affected its decision.  For those reasons, I find that there are no real prospects of ground 1 succeeding.

19. The second ground is the “Tribunal made jurisdictional error by failing to inquire with the Egyptian authorities the genuineness of the official documents”.  The applicant says that those documents were important for the credibility assessment of the applicant and the applicant could not have made those inquiries himself.  The applicant and his adviser did ask the Tribunal during the hearing, on a number of occasions, to make such inquiries of the authorities from which they had purported to produce documents.  The Tribunal considered those requests and rejected them for the reasons given at [63] of its reasons.

20. In my view, that was a rational basis for considering the request and refusing it.  In particular, it might be questioned what utility might arise from an inquiry made by the Tribunal of an institution which had, in fact produced the document, where the production had been obtained through bribery or any form of payment.  In light of that, I find that ground 2 similarly does not have any reasonable prospect of success.

21. The third ground in the amended application is:

    The Tribunal made jurisdictional error in that although the Tribunal accepted the applicant’s wife’s evidence given at her spouse visa interview, it failed to consider circumstances of harm described by the wife in its assessment of “Whether the visa cancellation may result in Australia breaching its international obligations” about non-refoulement. 

22. This ground is based upon the following. 

23. Part of the applicant’s original claims to be owed protection, were that his business had been destroyed by fanatic Muslims, who had then threatened to kill him.  In an interview with an officer of the Department in connection with the partner visa application, the applicant’s wife said, amongst other things, that the problems that the applicant faced in Egypt was in relation to the person in the shop and that is what caused problems afterwards.  She explained that those persons burnt the shop and that she was scared for her children and that afterwards the applicant had travelled and she had been living in other places. 

24. The applicant’s point arises because it was critical to the Tribunal’s decision that other aspects of the applicant’s wife’s evidence at that hearing was inconsistent, in a large part, with the applicant’s own claims, such as that his son Mark had been killed and that he had undertaken religious activities, including visiting prisons, and had been detained by authorities. 

25. The applicant says that because the Tribunal had accepted those aspects of his wife’s claims, then it also ought to have assessed the applicant’s fear of harm on return to Egypt on the basis of its acceptance of the remaining aspect of the wife’s evidence: namely, that his shop had been burnt and that she was scared for her children and had to move around, after he had travelled, in order to avoid that trouble.  I do not think that that is a hopeless argument; there is some merit in it.  There are however, some difficulties with it. 

26. Principally, the Tribunal rejected, for reasons that have not been impugned, the claims made by the applicant in connection with his religious activities. The applicant claimed that it was those religious activities that gave rise to the attack on his business.  Therefore, by rejecting the religious claims, the Tribunal also dealt with the specific claim that the applicant’s business had been attacked and the more general claim that the applicant would be owed protection obligations on the basis of the harm he might face on the return to Egypt. 

27. I say that this ground raises an available argument because I do not need to come to any firm view about it.  I think, however, that even though it is an arguable point, I do not consider, in light of all of the other circumstances, including the lack of reasonable excuse for the significant delay of 19 months, that that is sufficient for me to be satisfied that it is necessary in the interests of the administration of justice to make an order extending the period.

28. For those reasons, I will refuse to make an order extending the period within which to make an application, and I will otherwise dismiss the application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:       28 June 2017