DRC17 v Minister for Immigration
[2019] FCCA 2811
•18 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DRC17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2811 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – refusal of an extension of time for a show cause application – rejection as a relevant consideration the burden imposed on the Courts. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 477 |
| Cases cited: MZABP v Minister for Immigration [2015] FCA 1391 SZUWX v Minister for Immigration [2016] FCAFC 77 SZUWX V Minister for Immigration [2015] FCA 1389 |
| Applicant: | DRC17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2572 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 2 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Stamford Law Firm |
| Solicitors for the Respondents: | Ms A Lucchese of Sparke Helmore |
ORDERS
The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is refused.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2572 of 2017
| DRC17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 20 March 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Judicial review proceedings in this Court were not brought until 14 August 2017, well outside the time prescribed for such an application under s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks an extension of time under s.477(2).
Background facts in this matter are conveniently dealt with in the submissions of the parties.
The applicant, a citizen of Iraq, arrived in Australia at Christmas Island on 13 April 2013. On 17 June 2013, the applicant attended an Irregular Maritime Arrival and Induction Interview (entry interview).[1]
[1] Court Book (CB) 1-27
Between April and June 2013 the applicant was in detention centres, following which he was granted a bridging visa and released onto the Australian mainland.[2]
[2] CB 56
On 23 April 2016, the applicant applied for the visa.[3] His claims for protection were set out in a statutory declaration accompanying the visa application[4] and may be summarised as follows:
a)from 2006, he was working at Al Talil airbase for Al Zaidi General Trading Co, a contractor for the US military. About four months before the US forces withdrew from Iraq, he began working for a business known as “KBR” at Al Talil airbase;
b)two or three months prior to the US withdrawal, he received a letter telling him to leave his job or he would be killed (first letter). He did not report the letter because the Iraqi police was infiltrated by the militia groups and he feared being targeted. He also needed to work to support his family;
c)he thought that his life would be at risk after the US forces withdrew in December 2011 so he moved to Basra. He could not find work until June 2012, when he began working for another business called “GRS” as a security guard;
d)in around July 2012, his family received a second threat letter (second letter) but was too scared to report the matter to police because they did not want to disclose the applicant’s whereabouts;
e)on 17 January 2013, a group of masked, armed men raided his family home, assaulted his father and burnt down his home. The men stated it was punishment for the family of a traitor. His family moved house;
f)in March 2013, his father received a phone call from an unknown man who stated he was a member of the militia and who warned him that they knew the applicant was working in Basra. After this, he arranged to leave Iraq; and
g)he believed that his life was at risk in Iraq because of his work for the US forces at the Al Talil airbase and for GRS. He claimed he was perceived by the militia groups in the south of Iraq as an infidel.
[3] CB 30-66
[4] CB 68-70
On 25 November 2016, the applicant attended an interview before the delegate.[5]
[5] CB 127-128
On 16 January 2017, the delegate refused to grant the applicant the visa.[6] The delegate did not accept that the applicant would continue to work at the airbase for four months after he received the first letter and found that the applicant moved to Basra for employment. The delegate did not accept that the applicant received the first letter. The delegate also identified inconsistencies and implausibility in the applicant’s claims with respect to the second letter and the applicant’s and his family’s reaction to it. As a result, the delegate did not accept that the applicant’s family was ever threatened because of the applicant’s work for GRS.
[6] CB 101-114
On 19 January 2017 the Authority sent the applicant a letter informing him of the referral of the matter to it and providing information about the Authority and referral.[7] On 20 March 2017, the Authority affirmed the delegate’s decision.[8]
[7] CB 115-120
[8] CB 126-137
Authority decision
The Authority set out the applicant’s evidence as it had been provided at his entry interview, in his visa application and orally at the interview conducted before the delegate.[9]
[9] CB 127-129, [5]-[6]
The Authority found that, as could be identified from the summaries of the applicant’s evidence at [5]-[6] of its decision, there had been a divergence in his evidence relating to his work history. The Authority identified that at the interview with the delegate, the delegate raised with the applicant that his evidence at the entry interview had differed; in particular, he had claimed that he had been unemployed and supported by his family from 2011 on. The Authority did not accept the inconsistency arose from any misinterpretation at the entry interview and found that the applicant had indicated at the entry interview that he was unemployed and supported by his family from 2011 until his departure in 2013.[10]
[10] CB 129, [8]
The Authority accepted that the applicant worked for Al Zaidi and KBR until December 2011. It identified that the applicant’s evidence in his visa application that he then went into “hiding in Basra” was not consistent with his evidence at interview with the delegate that he went to Basra to seek work. The Authority was satisfied that the applicant went to Basra to seek work.[11]
[11] CB 129, [9]
In relation to the first letter, noting that the male members of his family were in the workforce, the Authority did not accept that the applicant was required to continue working at the Al Talil airbase because he needed to support his family. In rejecting this claim, the Authority also noted that the applicant had stated he did not support his family once he moved to Basra. In light of these inconsistencies, the Authority did not accept the applicant received the first letter.[12]
[12] CB 129-130, [10]
In relation to the second letter, the Authority considered implausible the applicant’s claim that the militia could have known he was employed by GRS, but did not know that he had relocated to Basra. The Authority was not satisfied that the applicant’s family received the second letter.[13]
[13] CB 130, [11]
The Authority did accept that there was a fire at the applicant’s family home on 17 January 2013. However, since it had not accepted that the applicant had received any threats, the Authority found it was not plausible that the fire was caused by a militia group.[14]
[14] CB 130, [12]
In relation to the alleged telephone call to the applicant’s father, the Authority noted inconsistencies between his entry interview and protection visa interview about when he had begun planning his departure from Iraq and noted that the applicant could not explain why a member of the militia would warn his father. The Authority concluded that the claim was a fabrication.[15]
[15] CB 130, [13]
With reference to country information, the Authority accepted that the risk to people who formerly worked for or with foreign companies across the whole of Iraq was moderate. However, it noted that it had been four years since the applicant worked for GRS and more than five since he had worked at Al Talil airbase, and that his association with those employers was considerably diminished. It concluded that there was not more than a remote chance the applicant would be harmed on the basis of his former employment.[16]
[16] CB 131, [17]
With reference to country information, the Authority was also not satisfied that: there was a real chance the applicant would be persecuted in southern Iraq as a Shia Muslim;[17] he would face a real chance of serious harm from generalised violence;[18] or that he faced a real chance of serious harm on the basis that he had spent time in or sought asylum in Australia.[19]
[17] CB 132, [18]
[18] CB 132, [19]
[19] CB 132, [20]
The Authority concluded that the applicant did not meet the criteria of s.5H(1) or s.36(2)(a) of the Migration Act.[20] Referring to its anterior findings, the Authority was also not satisfied that the applicant would face a real risk of significant harm on return to Iraq and was not satisfied that he met the complementary protection criteria in s.36(2)(aa) of the Migration Act.[21]
[20] CB 132, [21]
[21] CB 133, [22]–[25]
The present proceedings
These proceedings began with a show cause application and application for an extension of time filed on 14 August 2017. The matter was docketed to Judge Barnes. On 15 November 2017, a registrar made procedural orders by consent. Those orders, among other things, required the applicant to file and serve any amended application and affidavit containing additional evidence by 2 February 2018.
On 15 March 2019, Judge Barnes made further procedural orders, by consent, listing this matter for an interlocutory hearing of the application for an extension of time on 2 October 2019 before me.
On 13 September 2019, the applicant lodged and served a proposed amended application for an extension of time. On 17 September 2019, he filed written submissions and an affidavit deposed by his solicitor purporting to explain the applicant’s non compliance with the Court’s timetabling orders.
Despite the significant period of non compliance with the Court’s procedural orders, I granted the leave sought for the applicant to rely upon the proposed amended application for the purpose of the extension of time hearing. I took into account the applicant’s affidavit made on 13 July 2017 and filed with his original application,[22] his supplementary affidavit made on 27 September 2019 and the affidavit of his solicitor, Mr Ali Alkafaji, made on 17 September 2019.
[22] in particular at [1]
The simple facts are that the applicant is impecunious and his solicitor was reluctant to work for free or to engage counsel without being put in funds to pay counsel. Ultimately, and given the significant delay involved, Mr Alkafaji took the risk of instructing counsel without payment by the applicant.
The application as amended, pursuant to the leave I granted on 2 October 2019, proposes the following single particularised ground:
1.The applicant claimed to have received a threat letter from a militia group in August/September 2011. The Immigration Assessment Authority (“the IAA”), in its decision dated 20 March 2017 at [10], did “not accept that he received [the] threat letter”' ("the Threat Letter Finding·'). The IAA erred in making the Threat Letter Finding for reasons including the following:
a)One reason the IAA made the Threat Letter Finding was because the IAA considered there was an inconsistency between the applicant’s claim that ·”he was unable to quit his work as he needed to support his family”· and a statement by the applicant on his entry interview form that "his father is employed in transport and storage". However, the applicant did not state [in] the entry interview form that his father was “employed” in transport and storage. The applicant stated in the entry interview form that the father's "occupation" was transport and storage. The fact that the father had such an occupation does not mean he was “employed”'. The IAA misunderstood the evidence before it and then rejected the applicant's claims based on its misunderstanding of the evidence.
b)Another reason the IAA made the Threat Letter Finding was because it did “not accept that [the applicant's two brothers] were too young to work”. The IAA failed to have regard to the fact that the entry interview form did not record that the brothers had an occupation or employment.
c) The IAA made the Threat Letter Finding because of some “inconsistencies” recorded by the IAA at [10]. The inconsistencies provided an insufficient and unsatisfactory basis to make the Threat Letter Finding. The IAA failed "to appreciate the particular nature of the task" (AVQ15 v Minister [2018] FCAFC 133 at [28]) in evaluating the inconsistencies.
Consideration of the extension of time
Section 477 of the Migration Act provides:
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
…
Matters relevant to whether “it is necessary in the interests of the administration of justice to make the order” include:
a)the length of the applicant’s delay in filing an application in this Court;
b)an explanation of the applicant’s delay; and
c)prospects of success on the substantive application.
While those three factors commonly determine the outcome of an extension of time application, the Court’s discretion is at large (subject of course to the requirements of the legislation) and other factors may potentially bear upon the exercise of discretion. On occasion, prejudice to the Minister is raised as a factor but the Minister made no such claim in this case.
In the present case, the length of the applicant’s delay in filing his original show cause application is 112 days. I view a delay of that length as significant.
The explanation for the delay is set out in particular in the applicant’s affidavit made on 27 September 2019. The applicant advances three reasons for his delay. The first is his impecuniosity. He concedes that Mr Alkafaji promptly notified him of the decision of the Authority and gave him a copy of it. Mr Alkafaji also provided some advice. This included some advice about the filing fee in this Court and the option of applying for a fee waiver. The applicant further seeks to explain his failure to take advantage of the possibility of a fee waiver by referring to his “huge mental stress”. That is sought to be corroborated by an annexed statement from the Ware Street Medical and Dental Centre dated 28 September 2018, which refers to the applicant’s symptoms of depression, anxiety and stress.
The third explanation for the applicant’s delay is that for some time, he was left unmolested by the Minister’s Department. However, the applicant was stimulated to consult Mr Alkafaji again when he was contacted by the Minister’s Department by telephone and notified of the cessation of his bridging visa. It is apparent that the applicant’s return to Mr Alkafaji’s office was stimulated by his fear of being deported. Mr Alkafaji again advised the applicant about the filing fee but the applicant did not have the money. Eventually, a friend lent the applicant the filing fee which the applicant passed on to Mr Alkafaji and thereafter the original application was filed.
While this is an apparently honest explanation for the delay in coming to court it is not to my mind a satisfactory one. Impecuniosity, stress, anxiety and depression are unfortunately factors affecting a very large number of applicants in this jurisdiction. Most nevertheless manage to file their show cause application within the time prescribed.
The legal merit of the amended application
The applicant contends that there is merit in the ground now advanced. He submits as follows:
Ground 1 – Error in finding concerning threat letter
The applicant claimed to have received a threat letter from a militia group in August/September 2011: CB 68/69 at [7]. The IAA, in its decision dated 20 March 2017 at [10], made the following finding: (“the Threat Letter Finding”).
The applicant’s central claim is that he was the recipient of threats from a militia group or grounds. He states that the first of these threats was received in August/September 2011. He further states ... that despite the threat he was unable to quit his work as he needed to support his family. I do not accept this assertion. The applicant’s father was 53 years of age at the time. On his “Irregular Maritime Arrival Entry Interview” form the applicant states that his father is employed in transport and storage. The applicant’s brothers A and M were than aged 21 and 20, and I do not accept that they were too young to work as claimed by the applicant in his PV interview. The applicant further stated that he did not support his family once he had moved to Basra in December 2011. Taking into account these matters I am satisfied that at the time other members of the applicant’s family were in the workforce. I conclude that these inconsistencies reflect poorly on the applicant’s credibility and do not accept that he received a threat letter demanding that he quit his job or he would be harmed.
The IAA erred in making the Threat Letter Finding for the following reasons.
First, one reason the IAA made the Threat Letter Finding was because the IAA considered there was an “inconsistency” (see last sentence of [10]) between the applicant’s claim that “he was unable to quit his work as he needed to support his family” and a statement by the applicant on his entry interview form that “his father is employed in transport and storage”. However, the applicant did not state in the entry interview form that his father was “employed” in transport and storage. The applicant stated in the entry interview form (at CB 7) that the father’s “occupation” was transport and storage. The fact that the father had such an occupation does not mean he was “employed”. The IAA misunderstood the evidence before it and then rejected the applicant’s claims based on its misunderstanding of the evidence.
In SZRHL v Minister (2013) 136 ALD 641 at [34]-[35] Logan J stated:
As I opined by reference to earlier authority in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113; 112 ALD 501; [2009] FCA 1470 at [37] , “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise”. That is this case. The process of reasoning that led to the damning of the first appellant’s credibility by the tribunal was premised upon the basis that a reference to a “false case” laid against him in the courts of Bangladesh had only emerged belatedly, as opposed to when the visa application was made. That premise was not peripheral.
One way of characterising the tribunal’s reasoning as to the first appellant’s absence of credibility is that it, based as it is upon a false premise, it is illogical or irrational. That is the alternative way in which the appellants grounded their challenge in the court below to the tribunal’s decision and, in this court, put their case that the Federal Magistrates Court had fallen into error. A decision so based is not “within the range of possible acceptable outcomes”: Li at [105].
In the present case, as in SZRHL v Minister, the IAA engaged in “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise”. This is a jurisdictional error.
Second, another reason the IAA made the Threat Letter Finding was because it found that the applicant’s brothers A and M “were in the workforce”. The applicant gave information about his brothers A and M during his “Arrival and Induction Interview”. The interview record at CB 8-9 did not record that the brothers were employed or had an occupation. This matter was relevant to an assessment of the applicant’s claims that his brothers A and M did not work. The IAA did not refer to this matter in its decision. On the one hand, it is accepted that a decision-maker does not have an obligation to refer to every item of evidence and a failure to refer to an item of evidence does not mean that the decision-maker overlooked the evidence. On the other hand, where evidence is significant, it is open to a court to conclude that the decision-maker’s failure to refer to the evidence indicates that the decision-maker overlooked the evidence. In the present matter, it is open to the court to conclude that the IAA overlooked this aspect of the Arrival and Induction Interview record.
Third, the IAA made the Threat Letter Finding because of some “inconsistencies” recorded by the IAA at [10].
In AVQ15 v Minister [2018] FCAFC 133 at [28] the Full Court stated:
[27] ... the term “inconsistency” should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis. As we have noted above, adverse credibility findings might be based on a variety of matters, including inconsistencies between, for example, evidence or claims made at different stages of the decision-making process or differences between oral evidence and contemporaneous documents. In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.
[28] ... even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.”
Some observations are as follows. First, the IAA considered there was an “inconsistency” (last sentence at [10]) between:
a)the applicant’s claim “that despite the threat he was unable to quit his work as he needed to support his family”; and
b)evidence before the IAA which the IAA considered supported a finding that “at the time other members of the applicant’s family were in the workforce”.
However, even if other members of the applicant’s family were in the workforce, this does not give rise to an ‘inconsistency” between this fact and the applicant’s explanation as to why he did not quit work. There are many situations where all adult members of a family unit must, or are expected to, or feel an obligation to, work in order to support the family. The IAA made the error explained in AVQ15 v Minister at [27] above, that is it made a finding of “inconsistency” when there was no inconsistency.
Second, the applicant gave the explanation that “I decided to continue my work ... because ... I needed the money to support my family” in the statement accompanying his protection visa application at CB 69 [8]. The applicant did not repeat this explanation when asked at his protection visa interview “why he would continue working for KBR after receiving this threat”: see CB 105.4. The fact that the applicant did not repeat the explanation goes in part to the importance to the applicant, and meaning of, the explanation. For example, the fact that the applicant did not repeat the explanation at the protection visa interview suggests that he was not claiming that he was the only person in his family who was employed. Yet the IAA did not refer to this point (ie explanation not repeated at protection visa interview) in its analysis at [10]. To the contrary, the IAA’s use of the words “in his more recent evidence” in the third line of [10] suggests that the IAA wrongly understood that the applicant gave the explanation at his protection visa interview.
Third, even if there is no error in the IAA’s finding of “inconsistency”, the inconsistency involves a matter concerning the applicant’s motivation (his reaction to the threat letter) and evidence which is ambiguous and uncertain (ie the applicant did not clearly or expressly claim that his father and brothers did not work). The IAA moved directly from a finding of “inconsistency” to a rejection of the central aspect of the applicant’s claims – that he received a threat letter in August/September 2011. On a fair reading of the evidence before the IAA, the alleged inconsistency is comparatively minor, and does not provide a rational foundation for rejecting the applicant’s central claim. For example, the Minister’s delegate did not consider this aspect of the applicant’s claims involved an “inconsistency”. The IAA, in its decision at [10], did not “assess the significance of that inconsistency and the weight to be given to it”: AVQ15 at [28]. For reasons explained in AVQ15 at [8], this involved a jurisdictional error.
Conversely, the Minister contends that the ground now advanced is not meritorious. The Minister submits as follows:
The sole contention in the proposed amended substantive application for review is that the Authority’s findings at paragraph [10] reveal jurisdictional error because they were made on the basis of “inconsistencies” which did not provide a sufficient basis to make that finding.
Firstly, the applicant contends that the Authority considered there was an inconsistency between the applicant’s claim that he needed to support his family and his evidence at the entry interview that his father was ‘employed’ in transport and storage. The applicant contends that he only said his father’s ‘occupation’ was in transport and storage, which did not mean he was ‘employed’. Secondly, he claims that the Authority failed to have regard to the fact that the entry interview did not record that the applicant’s brothers had an occupation or employment.
The Minister respectfully submits that this proposed ground does not, at an impressionistic level,[23] identify any arguable case of error in the Authority’s decision such that leave to amend or an extension of time should be granted. Rather, the proposed ground invites this Court to engage in a merits review of the Authority’s decision and to reach a different finding of fact to the one it reached. The conclusion reached by the Authority at paragraph [10], in light of the evidence it had set out at paragraphs [5]-[6], was plainly one which a reasonable decision maker could have reached on the same evidence.
That the applicant is essentially seeking merits review is patent from the arguments advanced in his written submissions. In those submissions, the applicant asks the Court to draw a distinction between the words ‘occupation’ and ‘employed’, but has not explained the significant difference between the ordinary meaning of those words for which he contends, and which he says led the Authority into error: AS, [21]. The Minister respectfully submits that no such error or misunderstanding exists. That the Authority chose to use the word ‘employed’, rather than ‘occupation’ does not mean that it misunderstood the evidence from the entry interview. It was reasonably open to it to take from the evidence that the applicant’s father was ‘employed’, including in light of other evidence from that interview, namely that the applicant’s father supported his child: CB 7.
Further, the applicant asserts that the finding at [10] was not open because: “There are many situations where all adult members of a family unit must, or are expected to, or feel an obligation to, work in order to support the family”: AS, [27]. In advancing this explanation, the applicant is in substance suggesting that the decision maker could have reached a different conclusion, but does not identify any arguable case of jurisdictional error. Nor does he explain how the Authority erred in concluding that it was inconsistent for the applicant to claim he did not stop working after receiving the first letter because he needed to work to support his family, including his brothers who he claimed were “too young to work”, when the other members of his family were in the workforce (and not too young to work, as claimed).
[23] MZABP v Minister for Immigration [2015] FCA 1391 at [66]
In my view, the ground now advanced by the applicant is weak but not hopeless. I note that in MZABP v Minister for Immigration,[24] Mortimer J stated the following at [65]-[66]:
First at [82] to [85], Wigney J sets out the need for careful distinction in an assessment of the prospects of grounds of review between grounds that are hopeless and destined to fail, and those which are properly described as weak. As his Honour says at [84], in the latter case it will seldom be appropriate to refuse to extend time. Certainly, in my opinion it is inappropriate to require an applicant, in effect, to establish that her or his grounds of review will succeed. The point was made more than 20 years ago by French J in Seiler [1994] FCA 878; 48 FCR 83 at 98:
In deciding to allow time to be extended, I have not taken into account the merits of the application. It was fully argued on the merits in any event. In the circumstances, it would be artificial to import into the consideration of the extension of time some assessment of the likelihood of the success of the application. The question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the decision to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it. In the event, and for the reasons outlined, I propose to grant the necessary extension of time.
(Mortimer J’s emphasis retained)
Second at [102] Wigney J refers to the Federal Circuit Court practice of listing both an application for extension of time and the final hearing at the same time, noting that practice may encourage an undue focus on determination of the merits of the proposed grounds of review raised by an application for an extension of time and resulting in an artificial approach to the extension of time application. I agree with those observations. In my opinion, unless the grounds are hopeless in the sense I have discussed above so that simply on an impressionistic reading and consideration without full argument a judge can be confident they must fail, the better approach if the Court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time would be to do so and then to consider and determine the grounds of review with a full consideration of them. There is no reason that cannot still be done in one hearing and in my opinion it reflects a more appropriate exercise of the supervisory jurisdiction of the Federal Circuit Court.
[24] [2015] FCA 1391
In the present case, the extension of time application was heard in advance of any further hearing and I took the unusual course of reserving judgment on it. I take into account her Honour’s observation that, confronted with a weak but not hopeless ground, it will seldom be appropriate to refuse to extend time for that reason. In my view, however, that statement needs to be put in its proper context, having regard to the other factors which bear upon the exercise of the Court’s discretion. The only statutory consideration is the requirements of the administration of justice. Where the delay in coming to court is short and a reasonable explanation is given, the Court will commonly grant an extension of time where the legal merit is not strong but is arguable. On the other hand, where the delay is extensive and an insufficient explanation for it is advanced, those factors need to be weighed in the balance in considering the legal merit of the proposed application.[25] In the present case, I prefer the submissions of the Minister concerning the proposed ground of review and, considering it on the impressionistic basis which is appropriate at an extension of time hearing, I do not consider that the merit of the proposed ground is sufficient to outweigh the other considerations. In substance, the applicant is attempting creatively to establish an issue from the Authority’s choice of words, which may be no more than loose language.
[25] See SZUWX v Minister for Immigration [2015] FCA 1389 per Griffiths J at [55], [60]-[61] and [77]; affirmed on appeal in SZUWX v Minister for Immigration [2016] FCAFC 77 relevantly at [4] and [10] per Bromwich J
The burden on the Courts
Counsel for the applicant advanced an additional factor for consideration. He noted that while there is no appeal against an extension of time, the Federal Court exercises original jurisdiction to review judicially such decisions. Counsel noted that such jurisdiction is exercised by a single judge, with the consequence that if the decision of that judge is adverse to an applicant, there may need to be an appeal hearing before the Full Federal Court. Counsel submitted that this Court should, therefore, consider the burden imposed upon the Federal Court by the refusal of an extension of time. The mere fact of raising a potential consideration, however, does not mean that the Court has to consider it, let alone accept it.[26]
[26] SZUWX at [57] per Griffiths J
There are of course many burdens both on this Court and the Federal Court. This Court is burdened by a very significant number of migration proceedings. If an extension of time is granted, that burden is increased by one. It is, in my view, inappropriate to consider the burden imposed on this Court by the granting of an extension of time. The question is what the interests of the administration of justice require. If those interests otherwise require an extension of time, the Court has a duty to sit and determine the matter. It is for the Federal Court to state whether this Court should take into account any burden imposed by the refusal of an extension of time. It is in my view inappropriate to consider in this decision the issue of either the burden on this Court or the potential burden on the Federal Court.
Conclusion
I have decided that the interests of the administration of justice do not require the granting of an extension of time in this case. The application as amended is in consequence incompetent.
The parties agreed at the hearing on 2 October 2019 that if an extension of time were refused, scale costs should apply. I will so order.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 18 October 2019
0
4
2