DOK16 v Minister for Immigration
[2019] FCCA 1858
•24 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOK16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1858 |
| Catchwords: MIGRATION – Application for extension of time under s.477(2) of the Migration Act 1958 (Cth) – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.438, 477 |
| Cases cited: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 |
| Applicant: | DOK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3354 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 24 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2019 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3354 of 2016
| DOK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
On 18 October 2016 the Administrative Appeals Tribunal (the Tribunal) affirmed a decision not to grant the Applicant a protection visa. The Applicant sought judicial review of that decision by application filed in this court on 29 November 2016. As pointed out in the Minister’s submissions, this was outside the 35 day time limit provided for in s.477(1) of the Migration Act 1958 (Cth) (the Act) by seven days. In these circumstances it was necessary for the Applicant to seek an extension of time under s.477(2) of the Act. He made such an application in his review application.
Section 477(2) provides that the court may, extend the 35 day period as it considers appropriate if:
…an application for that order has been made in writing to the court specifying why the applicant considers it necessary in the interests of the administration of justice to make that order, and the court is so satisfied.
The grounds for an extension of time specified in the application were:
I have received the decision late and I was not aware of the time limit.
I believe I have genuine ground because I had been denied natural justice.
However the Applicant did not otherwise address his delay in commencing judicial review proceedings. He did not file any affidavit evidence in this respect, despite the fact that at the callover in December 2017 he was given the opportunity to file an affidavit including an explanation for the delay in commencing the proceedings.
The Applicant did not file written submissions. Further, when given an opportunity today to address the grounds in his application and to raise any concerns about the Tribunal decision and procedures, he had nothing to say.
I have nonetheless considered the application for an extension of time on the material before the court. Although there are no mandatory considerations, the court commonly considers a number of factors in determining whether it is in the interests of the administration of justice to extend time under s.477(2) of the Act (see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 and SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456). Of particular relevance in this case are whether there is a satisfactory explanation for the delay, whether the Minister would suffer any prejudice if time was extended and the merits of the grounds of review. The Applicant did not raise any other factors.
As to the delay, as the Minister conceded, it is relatively short. Nonetheless, there is an applicable limitation period in s.477(1) of the Act and an extension of time under s.477(2) of the Act is an exception. The Applicant has failed to file any affidavit evidence explaining the delay and has failed to explain in any meaningful sense why he considers it necessary in the interests of the administration of justice to grant an extension of time.
As the Minister pointed out, in failing to file an affidavit explaining the delay, the Applicant has failed to comply with r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules). It requires that an application for an extension of time should be accompanied by an affidavit explaining the delay and showing why it is necessary in the interests of the administration of justice to grant the extension of time.
The First Respondent contended that on this basis alone the application for an extension of time must fail. The Applicant is self-represented. In my view, it is appropriate to dispense with compliance with r.44.05 pursuant to r.1.06(1) of the FCC Rules in order to consider the whole of the circumstances, rather than to dismiss the application on this basis. I consider that I should address, insofar as possible, the written (but unsworn) explanation the Applicant has provided and also the other factors to which I have referred, in particular the merits of the substantive application.
However, even taking the Applicant’s written explanation for the delay in making his application at its highest, it is inadequate. He has not explained the circumstances in which he claimed he received the Tribunal decision “late”. It appears from the courtbook that the Tribunal posted its decision to him at his nominated postal address on 19 October 2016, the day after the decision. This was also the address to which the hearing invitation had been sent and the Applicant attended the scheduled Tribunal hearing.
Insofar as the Applicant claimed he was not aware of the time limit, the Tribunal’s decision notification letter included a factsheet (a copy of which appears in the supplementary courtbook) which informed him that:
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
In this way the Tribunal informed the Applicant that there was a 35 day time limit. Further, there is authority to suggest that ignorance of time limits, without any further justification, is generally not regarded as a satisfactory explanation (see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38]).
I am not satisfied that the bare assertions that the Applicant makes in his application form provide a meaningful or satisfactory explanation for the delay (notwithstanding that it was a delay of only seven days).
There is no suggestion that the Respondents would suffer any prejudice from the grant of an extension of time, other than costs. However the mere absence of such prejudice is not sufficient to justify an extension of time (and see SZTRY at [6]). In that sense, the absence of prejudice is a neutral factor.
I have had regard to the First Respondent’s submission as to the need to avoid the burden and cost of additional litigation where the delay has not been satisfactorily explained and where there is said to be a lack of merit in the proposed grounds of review. However the additional burden is perhaps less than in some other cases, given that if the extension of time was granted, the final hearing would proceed today.
I have borne in mind the asserted public interest in an end to litigation in relation to decisions such as those of the Tribunal. I also bear in mind the fact that there is no appeal (as such) from a decision not to grant an extension of time and the fact that, if the Applicant is unsuccessful, he would be returning to a country in which he claimed to fear harm.
Even though the Applicant has not provided a satisfactory explanation for his delay, I also accept that there may be circumstances in which the potential merit of proposed or apparent grounds of review is such that it is nonetheless appropriate (having regard to all of the circumstances) to grant an extension of time in the interests of the administration of justice. However, this is not such a case.
It is not necessary for the Applicant to positively establish that the application will succeed. In considering an application for an extension of time the grounds of review should be considered in the reasonably impressionistic way discussed by Mortimer J at first instance in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (upheld on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478). However, the review application should at least have such a prospect of success that an extension of time would not be an exercise in futility. I bear in mind that the Applicant is self-represented. I have considered the material before me in those circumstances.
However, for the reasons that follow, I accept that, as the First Respondent submitted, there is such a lack of merit in the proposed grounds of review that an extension of time would be futile. None of the grounds of review or anything apparent on the material before the court is such as to satisfy me that the Applicant’s substantive case for judicial review is sufficiently arguable to justify an extension of time in all the circumstances of this case (see MZABP at [62] per Mortimer J). Rather, on their face his grounds are plainly hopeless.
In order to consider the merits of the grounds, even at a reasonably impressionistic level, it is necessary to outline the Applicant’s claims and the basis for the Tribunal’s decision.
The Applicant, a citizen of Malaysia, arrived in Australia in 2014. He applied for protection in August 2015. In his application he claimed he left Malaysia because of a dispute with his former Chinese Malaysian business partner named Chong. The Applicant claimed that Chong lost income from the business through gambling and when he raised the issue and asked for the money back, Chong threatened to kill him. The Applicant claimed he had to sell the business to pay creditors but that he did not give any money to Chong because he had taken money from the business. He claimed that Chong then hired a local Chinese gang to kill him and that he understood from his family that the gang continued to look for him. The Applicant claimed the police would not help him because they were corrupt and that Chong had told the police that he had run away with the money.
The application was refused. The Applicant sought review by the Tribunal. He attended a Tribunal hearing.
In its reasons for decision the Tribunal described the Applicant’s claims. It referred in considerable detail to the evidence at the Tribunal hearing. In essence, it found that although the Applicant had initially confirmed at the hearing that all his written claims were true and correct, there were multiple and significant discrepancies between the Applicant’s oral evidence to the Tribunal and his written claims. It observed that the Applicant’s only explanation was that there must be mistakes in the written claims. The Applicant had not provided an explanation for why those written claims (which he said had been read back to him) contained so many errors and did not contain details he had put orally to the Tribunal.
The Tribunal described the inconsistencies in the Applicant’s evidence, including in relation to the length of time he ran his business in Malaysia, whether or not he was ever attacked by Chong, whether he approached the police for assistance, the date his problems with Chong began, whether he trusted Chong as a good business partner notwithstanding that he was using money to gamble, and whether or not Chong took over the business or whether the Applicant sold the business to pay creditors.
The Tribunal also took into account other matters. It found that the Applicant was not credible or forthcoming in his evidence regarding his work, financial support, accommodation in Australia or how he had spent his time in Australia. It found it not credible that the Applicant would not know the full name of his former business partner, whom he claimed to have known well and trusted for over 15 years. The Tribunal also had regard to the absence of any documentation evidencing the claimed business in Malaysia and the Applicant’s failure to demonstrate any understanding of business registration in Malaysia to support the claim that he had had a registered business there for what he had claimed, variously, was nine years or fifteen years.
The Tribunal had regard to the fact that the Applicant confirmed that he did not fear harm for any other reason in Malaysia.
On all the evidence before it, the Tribunal found the Applicant to be an unreliable witness and that it could not be satisfied as to the truth and credibility of the claims and evidence he had advanced.
The Tribunal was not satisfied that (as the Applicant had claimed in his written claims) the Applicant had a registered business in Malaysia; that his business partner used money from the business for gambling; that he asked the business partner to repay the money, resulting in a threat from the business partner to kill him; that he had to sell the business to pay creditors, or for any other reason; that the former business partner together with a local Chinese gang had threatened to harm and/or kill him to secure money from the sale of the business, or for any other reason; that he was attacked by the former business partner for any reason at any time; that he attempted to report the matter to the police at any time and/or was asked by the police for money to lodge a complaint; or that his former business partner had already made a complaint to the police about the Applicant.
Further, the Tribunal rejected the Applicant’s oral claims that his former business partner turned nasty in January 2013 (a claim that was said to lack detail or an explanation for what led to such a sudden change in Chong allegedly wanting to take over the business and threatening to kill the Applicant). The Tribunal did not accept that Chong existed or that any person with that name, or anyone else, with or without gang connections, had any intention or desire to harm the Applicant in any way. It did not accept that the Applicant’s claims to fear Chong and/or related gang members were true.
The Tribunal was not satisfied that the Applicant faced a real chance of serious or significant harm in the reasonably foreseeable future for any of the reasons claimed.
Before concluding, the Tribunal noted that there was a certificate said to be under s.438 of the Act on the departmental file. The Tribunal recorded that the document the subject of the certificate was an “Application and Identification Test Details Sheet”. This accords with the document the subject of the s.438 certificate that is the annexure to the affidavit of Katherine Louise Evans of 16 August 2017 relied on by the First Respondent in these proceedings.
The Tribunal stated that no reasons were identified by the Department as to why this document was the subject of the s.438 certificate. On the information before it, the Tribunal did not consider the certificate to be validly issued, as it was not apparent that disclosure of any matter contained therein would be contrary to the public interest for any reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed, as required under s.438(1)(a) of the Act. Nor was it apparent to the Tribunal that the document or any matter contained therein, or the information given by the Minister, was given to the Minister or to an officer of the Department in confidence within s.438(1)(b) of the Act.
Having reviewed the document in question, the Tribunal found that it did not contain any information which was “in any way relevant to any issue” before it.
The Tribunal affirmed the decision under review.
The grounds of review relied on by the Applicant are set out in his application.
The first ground is that the Tribunal “misconstrued the risk and fear of significant harm as set out in s36(2A)” of the Act and “construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants (sic) on returns to Malaysia”.
As the Minister submitted, this ground involves a misconception about the basis for the Tribunal decision. The Tribunal did not accept any of the Applicant’s factual claims. Hence there was nothing left for the Tribunal to assess against s.36(2A) of the Act in determining whether or not he met the complementary protection criteria.
In these circumstances, there is no arguable basis for the contention that the Tribunal “misconstrued the risk and fear of significant harm” for the purposes of s.36(2A) of the Act. There is also no arguable basis for a contention that the Tribunal (which set out the applicable law in its decision) otherwise misunderstood, misconstrued or misapplied the applicable law.
Insofar as this ground is intended to take issue with the Tribunal’s factual conclusions about the Applicant’s claims and evidence, it invites impermissible merits review.
Similarly, ground 2 is not arguable. It involves a contention that the Tribunal failed to comply with ss.424A or 424AA of the Act. Neither the ground itself, nor the Applicant today, identified any information which enlivened s.424A(1) of the Act. Nor is any such information apparent.
I note that it is well-established that there is no obligation on a Tribunal to put to an Applicant its provisional reasoning. For the purposes of s.424A of the Act, information does not include the existence of doubts, inconsistencies or the absence of evidence (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18]). Further, the doubts and inconsistencies identified by the Tribunal in this case arose from evidence the Applicant either gave orally to the Tribunal or in writing in his protection visa application. If s.424A(1) had been enlivened such information would appear to be within the exceptions in ss.424A(3)(b) and 424A(3)(ba) of the Act.
I have borne in mind the possibility that the information that was the subject of the s.438 certificate might have intended to be relied on in support of ground 2. However as discussed further below, I am satisfied that there is no applicable basis for a contention that the material the subject of the s.438 certificate contains any information which was in any way relevant to any issue before the Tribunal. It was simply an application and identification checklist. It contained boxes marked with ticks in relation to generic details about the Applicant, his personal identifiers, and the fact he spoke Malay. This was not information that was adverse to or undermined the Applicant’s case. There is no arguable case that the Tribunal should have put the information in the document the subject of the s.438 certificate to the Applicant under s.424A of the Act.
Ground 3 in the application is that the Tribunal “had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived at in accordance with the provisions of the Act”. As the Minister submitted, this is a template ground. It is meaningless and difficult to understand in the absence of particulars. No particulars have been provided, despite the Applicant being afforded an opportunity to explain what he meant by this ground.
If it is intended to be a complaint that there was no rational basis for the Tribunal decision, there is nothing in the material before the court to support any arguable ground of irrationality or legal unreasonableness. As the Minister submitted, the Tribunal reached its lack of satisfaction as to the truth of the Applicant’s claims on the basis of cogent and comprehensive adverse credibility findings. There is nothing to indicate such findings were not reasonably open to it on the material before it for the reasons it gave. If this ground is an invitation to review the merits of the Tribunal decision, it is not for the court to undertake merits review.
The affidavit the Applicant filed in support of his review application asserted that the Tribunal constructively failed to exercise its jurisdiction. Again, in the absence of particulars this contention is meaningless. Nor is there any basis apparent to support the unexplained contention in support of the application for an extension of time that there was a denial of procedural fairness.
The Applicant had not raised an arguable ground of review in the sense discussed by Mortimer J at [68] in MZABP.
I have also considered the implications of the fact that, as described in the Tribunal reasons, the Department issued a non-disclosure certificate under s.438 of the Act. The disclosure of the information in the certificate was said to be contrary to the public interest because it contained information relating to an internal working document and business affairs. Such a certificate would appear on its face to be invalid, consistent with the approach taken in MZAFZ v Minister for Immigrating and Border Protection [2016] FCA 1081; (2016) 243 FCR 1.
The document (described at [42] above) listed uncontroversial identity details in relation to the Applicant. As the majority of the High Court indicated in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 363 ALR 599 a failure to disclose a s.438 certificate amounts to a denial of procedural fairness. In addition, the provision by the Department of an incorrect and therefore invalid s.438 notification is an unauthorised act in breach of a statutory limitation on the procedures conditioning the Tribunal’s performance of its duty to conduct a review (see SZMTA at [44]). However, according to the majority in SZMTA and as explained in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1, such breach will only amount to a jurisdictional error if the breach is “material” in the sense that “compliance could realistically have resulted in a different decision” (SZMTA at [45]).
In this case there is simply nothing in the material before the court to suggest even an arguable case that the Applicant could in any way have been denied an opportunity to give evidence or make arguments relevant to his review or that he could otherwise have been deprived of the possibility of a successful outcome by the non-disclosure of the certificate or the information. There is nothing in the document the subject of the s.438 certificate that was arguably relevant or significant to the decision to be made. There was nothing arguably adverse to the Applicant in the information covered by the certificate. As indicated, there was no information that could arguably have enlivened s.424A of the Act. The Applicant’s knowledge of the certificate and the document the subject of the certificate could have made no difference to the outcome of the review.
The Applicant has not demonstrated, and the evidence before the court does not reveal, a sufficiently arguable case to warrant an extension of time, having regard to all of the circumstances and notwithstanding the relative briefness of the delay. To grant an extension of time would be futile. In all the circumstances I am not satisfied that it is in the interests of the administration of justice to grant the extension of time sought.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 4 July 2019
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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