DRS17 v Minister for Immigration
[2019] FCCA 3312
•4 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DRS17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3312 |
| Catchwords: MIGRATION – Application for judicial review of decision of Immigration Assessment Authority – application for an extension of time – explanation for delay was that the applicant could not read the decision and had various difficulties obtaining a translation – consideration of merits of substantive case – prospects of success – application for extension of time refused – no jurisdictional error established – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), Div 7.1 Migration Act 1958 (Cth), ss.36(2), 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473EA, 473FA Migration Regulations 1994 (Cth), Sch. 2 |
| Cases cited: BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365 BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641 EXU17 v Minister for Immigration & Border Protection [2018] FCA 1675 Minister for Home Affairs v AYJ17 [2019] FCA 591 Minister for Immigration & Border Protection v CRY16 [2017] FCAFC 210 Minister for Immigration & Border Protection v Singh (2003) 231 FCR 437 Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 607 SZNJG v Minister for Immigration & Border Protection [2018] FCA 344 SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 SZTES v Minister for Immigration & Border Protection [2015] FCA 719 |
| Applicant: | DRS17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 335 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 5 June 2019 |
| Date of Last Submission: | 5 June 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 4 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Dr Churches |
| Solicitors for the Applicant: | Mr Boisseau |
| Counsel for the Respondents: | Ms Tattersall |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.”
The application filed 16 August 2017, as amended 21 December 2017, to extend the time for the making of the application be dismissed.
The applicant pay the first respondent’s costs in the amount of three thousand five hundred dollars ($3,500).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 335 of 2017
| DRS17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASON FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority[1] made on 20 February 2017. This decision confirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection[2] not to grant the applicant a protection visa pursuant to the provisions of the Migration Act 1958.[3]
[1] Hereinafter referred to as the “IAA”
[2] As the Department of Home Affairs was previously known
[3] Hereinafter referred to as “the Act”
The application for review is significantly out of time and so requires the court’s leave to proceed. Since the application for review was filed, the applicant has changed solicitors and with the change has sought to amend the grounds of his review.
The most recent iteration of the review grounds is set out in the written submissions of his counsel, Dr Churches. This ground is not consistent with the further amended application annexed to the affidavit of Mr Boisseau, who is the applicant’s current solicitor.[4] Nothing turns on this other than the Minister opposes the applicant being given leave to amend his application. In this context, the Minister concedes that the proposed amendment will not cause it to suffer prejudice.
[4] See affidavit of Matthew Edmond Boisseau filed 3 May 2019
The ground provided by Dr Churches is as follows:
“The IAA committed jurisdictional error in that it acted unreasonably in not providing the Applicant with an opportunity to comment on the new country information or on the matters not taken up by delegate, (i) the two support letter; and (ii) the issue of taking three months to leave Sri Lanka after the truck incident.”
The Minister contends that this new ground has no reasonable prospects of success and therefore leave to proceed should not be granted. The case turns on the IAA’s statutory discretion, arising under section 473DC of the Act and whether the manner in which the IAA approached the country information, particularly in not referring it to the applicant for comment, can be described as being legally unreasonable.
Legal provisions relating to protection visas
The criteria required to be satisfied before a protection visa can be granted are set out in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·be subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
These sections reflect the definition appearing in the Refugees Convention, to which Australia is a signatory and which provides that a refugee is a person who:
“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering significant harm if returned to a particular country.
Subsection (2A) defines significant harm. It includes the relevant applicant for protection suffering all or any of the following circumstances:
·being arbitrarily deprived of his or her life;
·being subject to the death penalty;
·being subject to torture;
·being subjected to cruel or inhumane treatment or punishment; or
·being subject to degrading treatment or punishment.
Background
The applicant is a citizen of Sri Lanka, who arrived at Cocos Island, by boat, in September 2012. He is an ethnic Tamil and a Hindu, who was born in the Northern Province of Sri Lanka. He was eighteen years of age when he arrived in Australia.
He claims the protection of Australia on the basis that he fears he will be subject to persecution, if returned to Sri Lanka, because he will be harmed by paramilitary groups, associated with the Sri Lankan authorities, who have previously subjected him to extortion; and/or he will be targeted by the Sri Lankan authorities because of political views imputed to him by them that he is a sympathiser of the LTTE,[5] given his Tamil ethnicity.
[5] Liberation Tigers of Tamil Elam
Due to the manner of the applicant’s arrival in Australia, he is classified as an unauthorised maritime arrival, under the Act. The effect of this classification is to prevent the applicant from being able to apply automatically for any form of visa, including a protection visa, under the Act, unless the Minister authorises it, on the basis that it is in the public interest to do so.[6] In the jargon, the Minister must lift the bar.
[6] See Migration Act at section 46A
In this case, the Minister lifted the bar on 8 December 2015 and authorised the applicant to make an application for a Safe Haven Enterprise Visa.[7] One consequence of the Minister allowing the applicant to make a visa application, in this way, is that he is characterised as a fast track applicant and, as such, the manner in which his application is to be determined and any review rights arising is mandated by Part 7AA of the Act.
[7]Section 35A of the Act creates a category of visas known as protection visa, which included the safe haven enterprise visa or SHEV and temporary protection visa of TPA.
Part 7AA of the Act mandates a process of review in respect of all decisions made by Ministerial delegates in respect of such fast track applicants. In broad terms, if the delegate declines to grant a protection visa under the Act, the decision in question must be referred to the IAA, for review, as soon as practicable after it has been made.
Issues to do with new information, particularly relating to country information in respect of the situation for Tamils in Sri Lanka, is central to the case. However, these reasons for judgment must initially focus on whether the time for the applicant to bring this application should be extended. This, of itself, necessitates an examination of his case and an assessment of whether it has any reasonable prospects of being successfully prosecuted.
Applicable time limits
Pursuant to section 476 of the Act, the Federal Circuit Court has the same original jurisdiction to review what are characterised as migration decisions as that conferred on the High Court. The relevant decision of the IAA is such a migration decision. As a consequence, time limits apply to the filing of review proceedings in respect of migration decisions.
In particular, section 477(1) of the Act prescribes a period of thirty-five days in which to bring proceedings in respect of the review of migration decisions.
The relevant application, in this matter, was filed in the court on 16 August 2017. Accordingly, the application is some 142 days out of time. As a consequence, the applicant requires the leave of the court to proceed out of time. These reasons for judgment are directed to the resolution of this preliminary issue.
Pursuant to section 477(2) of the Act, the court is endowed with a discretion to extend the 35 day period, if it considers that it is necessary in the interests of the administration of justice to do so.
Other conditions apply to the exercise of this discretion. Griffiths J in EXU17 v Minister for Immigration & Border Protection[8] delineated these conditions as follows:
“[There are] two conditions to the exercise of the FCCA’s discretionary power to extend time under section 477(2). The first is the requirement that there be a written application seeking an extension of time which specifies why the applicant considers that it is necessary in the interests of the administration of justice to make the order. The second condition is that the FCCA must be satisfied that it is necessary and in the interests of the administration of justice to make the order.”
[8] See EXU17 v Minister for Immigration & Border Protection [2018] FCA 1675
The applicant has made the required written application for an extension of time. It is supported by an affidavit of the applicant, which was filed on 16 August 2017. In this affidavit, the applicant claims as follows:
·His original application for a protection visa was filed on 25 January 2016 with the assistance of a migration agent;
·He did not receive the relevant notice from the Department refusing his visa application;
·He was strongly reliant on his agent, who was not reliable in either providing information to him or forwarding on correspondence to him;
·He did not understand the contents of a letter, which he received on 20 February 2017, due to his lack of English. I presume, given the date of this letter, the applicant now assumes that this was the IAA decision;
·Against this background, he contacted his agent, who asked him to scan the letter and send it him electronically;
·The applicant did indeed do as he was asked and understood that his agent would respond to the correspondence appropriately;
·Thereafter, he remained vigilant for correspondence, checking his mailbox daily. He also frequently contacted his agent to inquire as to the progress of his case;
·It was only on 3 August 2017, when Australian Border Force officials came to his home that he was given to understand that he did not have a valid visa;
·Some thirteen days after being given to understand his review application to the IAA had been unsuccessful, he commenced these proceedings.
In summary, in his affidavit, the applicant deposed as follows:
“Basically, these are the reasons for me not filing my paperwork on time to the court. And also I wasn’t aware my visa ceases within 28days from receiving the refusal letter from the IAA. Migration Agent did not advise me the consequences of what will happen next. He was not easily contactable due to his workload. So whenever I had a question for him. He always replied I am busy and I will contact you later. So due to our lack of communication this had lead me not filing my paperwork on time.
Only last Thursday 3rd of August 2017 I came to realise about the IAA refusal letter, which I received in late February this year. I got one of my housemate to forward that letter to a friend in Sydney. When that friend read the letter and advised me this is the IAA refusal letter, which I had been waiting for months to receive in the mail.
Till then I had no idea the letter I have been holding for months was the IAA refusal letter.”[9]
[9] See applicant’s affidavit filed 16 August 2017 at [16] – [18]
On this basis, it is the applicant’s submission that it is in the interests of the administration of justice to extend time to file his application on the basis that he did not receive appropriate advice from his migration agent, in a timely fashion and further that he personally was not in a position to read and understand the IAA decision because of his lack of English comprehension.
In all these circumstances, the applicant contends that he has provided a satisfactory explanation for the delay in instituting proceedings and there he should be granted the necessary extension of time so that the court can deal with the merits of his application that the Tribunal did not properly exercise the jurisdiction conferred upon it.
On the other hand, the Minister contends that it would not be in the interests of the administration of justice that time be extended. Essentially, it is the Minister’s submission that such an extension would serve no useful purpose as the applicant has not disclosed a jurisdictional error, which is either arguable or has reasonable prospects of success. In addition, it is the Minister’s position that the applicant’s explanation for the delay itself is unsatisfactory and contradictory.
Accordingly, the current application before the court deals with two substantive issues, which are distinct from one another – the extension of time application; and the jurisdictional error application. They have been listed at the same time.
They are distinct but inter-related. If leave is not granted, the court cannot deal with the judicial review of the IAA decision. This has the potential to have the appearance of being unfair to the applicant, who may perceive that the full merits of his judicial review application has not been considered and this is axiomatically not in the interest of the administration of justice.
Wigney J expressed the potential difficulty in SZTES v Minister for Immigration & Border Protection[10] in the following terms:
“The extension application was set down for hearing at the same time as the substantive application. That is in itself not necessarily problematic. Courts regularly set down applications for leave to appeal or extensions of time at the same time as the appeal or substantive application. When this is done, however, it is important for the court and the parties to proceed in a way that makes it clear whether the leave or the extension application remains a live issue. In particular, care should usually be taken to ensure that issues that arise in relation to the leave or extension application are dealt with separately and distinctly from the issues that arise on the substantive application.”
[10] SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [52]
His Honour went on to indicate the great care, which the court needed to exercise in situations in which an extension of time application has been listed at the same time as an application for review. The necessity for such care arises from the danger of any unfortunate perception being created that an applicant’s substantive application had not received a proper level of hearing on its merit. As such, ordinarily, only in the clearly hopeless cases would it be appropriate to refuse an extension without fully dealing with the merits of the review case involved.[11]
[11] Ibid at [112]
Accordingly, I must take care not to conflate issues relating to the extension of time application with the substantive application. However, as will become apparent, I cannot ignore the issues raised in the judicial review application itself particularly the merits of the review. It would not be appropriate to extend time in a case that can only be characterised as being manifestly hopeless.
In SZNJG v Minister for Immigration & Border Protection[12] Markovic J summarised three principles which are relevant to the exercise of the discretion to extend time in the following manner:
·Whether the applicant had provided a reasonable explanation for the delay;
·Whether the respondent would suffer prejudice in the light of the delay; and
·The merits of the substantial application itself.
[12] SZNJG v Minister for Immigration & Border Protection [2018] FCA 344 at [24]
In EXU17 Griffith J warned against applying such criteria unduly prescriptively, being of the view that the discretion was one which was fundamentally to be informed in a manner which ensured that the interests of justice were served.
In this context, he cited the following comments of Mortimer J in MZZIV v Minister for Immigration & Border Protection:[13]
“The discretion to extend time is reposed in the Court to ensure that the interests of the administration of justice are served, and parties whose substantive appeals should be heard and determined in accordance with law are able to secure that outcome. Identifying which parties fall into that category requires analysis of the factual circumstances in each case. Sometimes, matters such as lack of legal representation, little or no proficiency in English, and little or no understanding of the Australian legal system may combine to suggest a delay is explicable. Other factors such as the length of the delay, the steps taken by an applicant during the running of the time period, and the time at which the applicant received a copy of the Court’s orders and reasons may be significant. The party’s personal circumstances may need to be considered. The importance of the subject matter of the proceeding to the party requesting an extension of time may also be relevant. The more there is at stake, the more confident the Court may need to be before it refuses an extension of time, especially if the delay is not significant. The manner in which a discretion such as this should be exercised cannot be answered by general statements about certain attributes or the circumstances of a party being insufficient.
Even in circumstances where the Court is persuaded on the basis of the kinds of factors referred to that an extension of time may be appropriate, the prospects of success of any appeal may be determinative of the manner in which the Court’s discretion should be exercised. That is because it is not in the interests of the administration of justice to utilise the resources of the Court and of other parties where there is no realistic prospect the appeal will succeed if an extension is granted. Such a process also exposes an applicant to the risk of significantly greater legal costs if the appeal is unsuccessful and the Court makes the usual orders as to costs.”
[13] MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 [5] – [6]
The applicant’s claim for protection
The applicant’s claims for protection can be summarised as follows:
·He is a Tamil from the Northern Province of Sri Lanka;
·His family was displaced during the civil war in 1996/1997;
·In 2011, the applicant and his parents commenced a business transporting coconuts and leased a truck to do so. As he was too young to drive, the applicant would accompany an employed driver seven days a week;
·From April 2012 onwards the truck began to be stopped by groups of men who spoke Tamil;
·The men demanded money and threatened that if he did not pay they would damage the truck;
·The applicant was afraid to report the threats because he believed the men were members of a Tamil paramilitary group;
·On 19 June 2012, after the driver had dropped off the applicant, the truck was stopped again and badly damaged by the Tamil men;
·The driver and his parents lodged a complaint with police;
·His family advised him to leave Sri Lanka because of fears he might be targeted by the Tamil paramilitaries for failing to pay the money demanded of him;
·He was liable to be targeted by such Tamil paramilitary groups, if he was returned from Australia, because he would be perceived by them to be wealthy or out of revenge because he had not met their earlier demands;
·He would be imprisoned if returned to Sri Lanka for having departed the country illegally. In prison he was liable to be targeted because of his Tamil ethnicity; and
·In the event of return, the applicant might be targeted by the authorities because of the possibility of him being imputed to be a LTTE supporter.
The applicant indicated, during the course of his arrival interview, that he had departed his home in Sri Lanka on 2 September 2012, which was approximately two and a half months after what has been described as the truck incident in the current review grounds.
The applicant provided two letters to the delegate as follows:
·An undated letter, from a justice of the peace, which confirmed accounts of individuals who had been killed in the applicant’s home district as a consequence of not paying money demanded of them.[14]
·A letter dated 10 January 2016, from a retired parliamentarian, in Sri Lanka, who indicated that the applicant’s mother had been visited by armed persons, who threatened her with death, if the applicant did not return to Sri Lanka. The writer also described the applicant as a person who had taken part in the Tamil struggles, in a nonviolent way, since his school years.[15]
[14] See Case Book at page 110
[15] Ibid at page 111
The Delegate’s decision
The delegate considered that the applicant’s claim for protection related to the risk of being subjected to extortion, in his coconut business, by Tamil paramilitary groups. The delegate was of the view that no evidence had been provided of any connection between the claims of extortion and the actual damage to the truck.
The delegate characterised the applicant’s evidence about the incidents of extortion to be inconsistent and lacking in detail. As such it doubted the applicant’s account.
The delegate referred to country information, including a 2015 DFAT report, which provided information regarding paramilitary groups. On the basis of this information, the delegate doubted that such paramilitary groups would be inclined to target the applicant, if he returned to his home district in Sri Lanka.
In these circumstances, the delegate doubted that paramilitary groups were likely to have targeted the applicant, although it could not be ruled out that he had been subject to some forms of petty criminality, in respect of the truck in the past.
The delegate did not accept that the applicant would be perceived as being a wealthy Tamil, on his return to Sri Lanka, merely because he had been involved in a business or that he had any form of profile as a sympathiser with the LTTE, given his age when the civil war had ended in Sri Lanka.
In these circumstances, on 30 December 2016, the delegate did not accept that the applicant was a refugee and so was not a person to whom Australia owed any protective obligations arising under the Act.
The delegate did not specifically refer to the two letters in support, which the applicant had supplied. As required by section 473CA this decision was referred to the IAA on 9 January 2017. The letters were part of the review material stipulated by section 473CB.
The IAA decision
In its decision, the IAA indicated that it had obtained new information regarding how Tamils, who originated in areas of Sri Lanka, formerly controlled by the LTTE, but who had illegally departed the country were likely to be treated by the Sri Lankan authorities, if returned. This information took the form of a DFAT Country Information Report for Sri Lanka dated 24 January 2017. Thus it post-dated the delegate’s decision.
The IAA accepted that, as a Tamil from a former LTTE area, the applicant was likely to be concerned he might be targeted by the Sri Lankan authorities. However, on the basis of the recent country information – the 2017 DFAT report – it formed the view that the situation for Tamils had significantly improved in recent years, particularly for those with no known connections to the LTTE.
In these circumstances, on the basis of both the DFAT report and a UNHCR report, it found that Tamils, from areas formerly controlled by the LTTE, were at low risk of being questioned or detained merely on the basis of being Tamil.
The 2017 DFAT report also indicated that there were no specific procedures to monitor returned asylum seekers. This evidence was also accepted and it was found the applicant did not face a real chance of suffering harm on the basis of being a failed Tamil asylum seeker.
The IAA considered the two letters provided by the applicant in support of his claim but elected to give them no weight. In this context, it noted one of the letters asserted that the applicant’s home had been invaded, which, in the IAA’s view was not a claim, which had been previously raised by the applicant himself.
However, the applicant’s current solicitor disputes this, asserting that he has listened to the applicant’s protection visa interview and heard the applicant indicate his home had been robbed by armed men.[16] This is an issue which has not, as yet, been definitively resolved and counsel for the Minister objects to the issue being ventilated without the entirety of the actual transcript of the relevant evidence being provided, so what the applicant is purported to have said can be placed in context.
[16] See affidavit of Matthew Boisseau filed 21 May 2019 at [6]
The IAA characterised the applicant’s evidence about the truck being stopped as implausible. However, even if the evidence was correct, it was not accepted that the incidents were linked, in the sense of originating with the same group. It was also noted that no one had actually been harmed in any of the alleged incidents.
Rather the IAA also considered that any such extortion attempts were opportunistic in nature and the last of these had occurred some months prior to the applicant’s departure from Sri Lanka. The IAA also relied on country information, which asserted an improvement in security conditions, in Sri Lanka, since 2012, to support its finding that the applicant was unlikely to be targeted, if returned there, on the basis he would be perceived to be a wealthy person.
The IAA noted that neither the applicant nor his parents were present when the truck was damaged and therefore they relied on the second hand account of the driver. In these circumstances, the IAA did not accept the damage to the truck and the earlier alleged extortion attempts were linked.
Legal provisions relating to new information
Section 473CB sets out the material, which the Secretary of the Department[17] must provide to the IAA. It includes the reasons of the delegate; any material provided by the applicant concerned to the original decision-maker; and any other material considered to be relevant.
[17] Hereinafter referred to as “the Secretary”
Section 473CC provides as follows:
“(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or
(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.”
The procedure of the IAA and how it is to conduct its fast track review function is delineated in section 473DA, particularly what application the rules of natural justice have to fast track matters, including any requirement to refer documents to an applicant for comment. The section reads as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB indicates that a fast track review is to be conducted only in respect of the material referred to the IAA by the Secretary without accepting or requesting any new information or interviewing the applicant concerned. In the jargon of administrative review, the review arising under Part 7AA is to be “on the papers” alone.
Other provisions deal with how the IAA may access new information, which was not before the original decision maker, and how that information is to be referred to the applicant concerned.
In this context, the IAA’s authority to access additional review material, to that provided to it by the Secretary, is limited and delineated exhaustively in Subdivision C of Part 7AA.
Section 473DC grants the IAA a discretion to obtain new information not previously before the Minister at time of decision if it might be relevant.
Section 473DC(3) provides the IAA with a further discretion to invite an applicant to provide further information, either in writing or through the medium of an interview.
However, the IAA is under no obligation or duty to obtain such information regardless of whether it is requested to do so by the applicant whose case has been referred to it or any other person [see section 473DC(2)].
The exercise of the discretion provided by section 473DC is subject to the satisfaction of two cumulative but overlapping considerations,[18] provided by section 473DD. The IAA is prohibited from considering new information unless two overlapping considerations are satisfied namely:
·The IAA is satisfied that there are exceptional circumstances sufficient to justify it considering such material; and
·The applicant concerned satisfies the IAA the new information:
·either could not have been provided to the Minister at time of decision; or
·is credible personal information not previously known and had it been known, may have affected the consideration of the claims made.
[18] See BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 at [9] per White J
If the IAA is satisfied that such exceptional circumstances arise, it is required, pursuant to section 473DE(1), to give the information so obtained to any referred applicant whose fast track review is being considered by it, subject to two provisos:
·firstly, the information has, in fact, been considered by the IAA;
·secondly, it prospectively forms part of the reasoning to be potentially adopted by the IAA for affirming a delegate’s decision.
If these provisos are satisfied the IAA is required to either invite the relevant applicant to comment in writing or at interview on such new information. However, these provisions are subject to a rider contained in section 473DE(3)(a) which provides that the requirement to provide new information, to an applicant, does not apply, if the information concerned is “not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member”.
In the present matter, counsel for the applicant, Dr Churches concedes that the relevant new information was information about a class of persons of which the applicant was a member. In these circumstances, there was no mandatory requirement for the information to be referred to the applicant.
Nonetheless, Dr Churches contends that, in all the circumstances arising in this case, it was legally unreasonable that this new information was not disclosed to the applicant, notwithstanding the generic nature of the information. In this context, he points to the discretion granted to the IAA, pursuant to section 473DC(3) to invite an applicant to provide new information.
In respect of the new information germane to the current matter, the IAA wrote as follows:
“I have obtained new information, specifically information regarding Tamils from former LTTE controlled areas and Sri Lankans who have departed Sri Lanka illegally and sought asylum overseas (information not specifically about the applicant but about a class of persons of which the applicant is a member), form the most recent DFAT country report for Sri Lanka which was published on 24 January 2017. This report was published after the delegate’s decision and the delegate relied on the 18 December 2015 DFAT report for Sri Lanka which the 24 January 2017 report has superseded. I am satisfied that there are exceptional circumstances to justify considering this new information.”[19]
[19] See Case Book at 195 [4]
Accordingly, the new information in this case was obtained by the IAA of its own motion. In this context, the IAA concedes that it was not referred to the applicant for his comment. It found there were exceptional circumstances justifying its consideration and given the date of the relevant report, it could not have been referred to the ministerial delegate for consideration.
In this context, the applicant’s grounds of review, as elaborated further by his counsel, contend that the IAA failed to exercise the discretion conferred upon it by section 473DC(3) to invite comment on new information given the parameters of other factual issues already delineated in the review.
Section 473EA sets out what must be contained in the written statements of any review decisions made by the IAA. They must set out the nature of the decision; the reasons supporting it; and the day and time it is made.
It is clear, from what was said by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection,[20] that the various powers conferred upon the IAA, including that contained in section 473DC, must be exercised within the bounds of legal reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li.[21]
[20] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 607 at [21]
[21] Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
In Li,[22] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[22] Ibid at [75]–[76]
In BCQ16 v Minister for Immigration & Border Protection[23] Thawley J characterised the modified review process, created by Part 7AA in the following terms:
“Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably (see Li), that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the “review material” and, subject to the statutory exceptions contained in Part 7AA, without obtaining “new information” or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme.”
[23] BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365 at [71]
Finally, mention must be made of section 473FA, which provides the legislative objective of Part 7AA, which is to enable the IAA to provide a mechanism of limited review, which is not bound by technicalities, legal forms or rules of evidence.
Submissions
Counsel for the applicant, Dr Churches, prepared written submissions in respect of the amended ground of review. They are thoroughly considered given that they were made in anticipation of leave to proceed being granted. He concedes that the new information falls within the exemption provided by section 473DE(3)(a).
However, it is his further contention that the discretion imposed on the IAA pursuant to section 473DC(3) is engaged. This empowers the IAA to obtain information from an applicant. It is Dr Churches’ further submission that this discretion is subject to overall considerations of legal reasonableness in the sense described by the Full Court in Minister for Immigration & Border Protection v Singh.[24]
[24] Minister for Immigration & Border Protection v Singh (2003) 231 FCR 437
In Singh the Full Court identified two distinct but related species of legal unreasonableness resulting in jurisdictional error – one based on errors arising in the decision-making process itself and the other based on what was the actual outcome of the decision-making process.
In the first, the court, in its supervisory role on judicial review, is able to identify a jurisdictional error in how the decision maker has approached the statutory task conferred upon it. In the second, being outcome focussed, the reviewing court is satisfied that the exercise of power, by the original decision maker is arbitrary, capricious or outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law.
As I understand Dr Churches’ submission, he relies on the second limb and characterises the IAA’s decision not to invite the applicant to provide new information as being unfair in the circumstances, which then prevailed. In his phraseology, it is necessary for a general sense of fairness to pervade any decision referable to section 473DC(3).
By necessary implication, he contends that it was procedurally unfair, in this particular case, that the applicant was not invited to give new information in respect of four discrete areas, which can be summarised as follows:
·The new country information, which was not known until after the decision was made;
·This information was used in conjunction with the two support letters provided by the applicant;
·The IAA relied on the delay attributed to the applicant in leaving Sri Lanka, in rejecting the support letters. It was procedurally unfair that the applicant was not given an opportunity to comment upon this information, given its centrality to the decision and the fact that the applicant was likely to be able to provide information about it; and
·In the reasons of the IAA there is no express reference to the fact that it had the authority to obtain further information. Axiomatically, it is not possible to ascertain whether it did or did not contemplate exercising this discretion and what informed such decision.
Dr Churches characterises this unascertained material as being dispositive to the decision-making process in this case, in the sense that it has the potential to be integral to it. In these circumstances, it is axiomatically unfair that the applicant was not given an opportunity to comment on it prior to decision.
The two letters provided by the applicant and his alleged assertion in interview that his home had been subject to robbery are not necessarily consistent with the new country information relied on by the IAA and which had not been provided to the applicant. The delegate did not refer to the letters (or indeed the statements alluded to in the affidavit of Mr Boisseau). Accordingly it is submitted that the IAA determined the case on a different basis to the delegate.
In these circumstances, Dr Churches would categorise the new information, when viewed in the light of the two letters and the omission of references to the robbery as being pivotal to the IAA decision and, as such, considerations of fairness dictated that the applicant should have been given an opportunity to comment, given the inconsistency between his case and the new information.
In this context, Dr Churches cites Minister for Home Affairs v AYJ17[25] in which Moshinsjy J said as follows:
“This is not to suggest that the IAA is obliged to provide an opportunity to comment simply because it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. Clearly, there is no such obligation … But the circumstances here are quite different. The IAA proposed to rely on a matter that had not been explored before the delegate and about which the respondent was likely to be able to provide evidence. This is not merely a matter concerning credibility.”
[25] Minister for Home Affairs v AYJ17 [2019] FCA 591 at [36]
In his submissions Dr Churches also relies on Minister for Immigration & Border Protection v CRY16.[26]In the case, the Full Court accepted that the discretion provided by section 473DC(3) was subject to considerations of procedural fairness. CRY16 was a case concerned with the principle of internal relocation contained in section 36(2B)(a) of the Act.
[26] Minister for Immigration & Border Protection v CRY16 [2017] FCAFC 210
In the case, the delegate determined that the applicant concerned was not a refugee. The case was automatically referred to the IAA for review. It found the applicant was at risk of suffering significant harm in his country of origin but would be safe in its capital city. It was noteworthy that the case was thus reviewed on a different basis to that which had been determined by the original decision maker.
In this context, the Full Court was asked to consider whether the IAA had fallen into jurisdictional error by not inviting the applicant concerned to comment, in some way, on the new information, which clearly was central to the case in question, which was to be reviewed pursuant to section 473CC.
In a formal sense the question posed was as follows:
“…reasonableness is closely linked to procedural fairness. Nevertheless, in light of the terms of s 473DA it is important to consider the present issue through the lens of Div 3 and the principles of legal reasonableness rather than the principles of procedural fairness. In other words, was it legally reasonable in the circumstances of the particular case for the Authority not to consider the exercise of its power to get documents or information?”[27]
[27] Ibid at [67]
The Full Court answered this question as follows:
“Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.”[28]
[28] Ibid at [82]
In CCQ17 v Minister for Immigration & Border Protection[29] Thawley J considered that there were “no fixed categories of circumstances in which it would be legally unreasonable to consider the discretion under section 473DC.”
[29] CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641 at [42]
However, His Honour considered that the issue of whether the discretion to obtain new information had been unreasonably exercised was likely to be determined by reference to the issue’s attachment to a point, which was likely to be dispositive of the review as a whole.
Dr Churches contends that, in the circumstances of the current matter, the new information can be characterised as being dispositive and should have been referred to the applicant given it was inconsistent with key aspects of his case. In his written submissions, Dr Churches wrote as follows:
“The upshot of the case law on the exercise of section 473DC is that a general sense of fairness pervades an assessment of whether the performance has been unreasonable. The Applicant submits that the reliance on materials as dispositive of the matter, where the materials (new country information) are undisclosed to the Applicant, who consequently has no opportunity to explain why the general assertions therein do not apply to him, or the materials were not the subject of decision by the delegate, and have been set aside on an incorrect basis, goes to the application that the IAA acted unreasonably.”[30]
[30] Dr Churches’s written submissions at 11–12 [30]
Counsel for the Minister, Ms Tattersall opposes the application to amend the grounds of review. The original application came before the Registrar on 15 September 2017. On this occasion, it was directed that any amended application be filed by 22 December 2017. It was also directed that the applicant serve any further material, including portions of any relevant transcripts by this date.
An amended application was filed, by the applicant’s previous solicitors, on 21 December 2017. Shortly prior to the date scheduled for the hearing of the current review, the applicant’s current solicitor provided the Minister with a further amended application, which was supported by an affidavit sworn by Mr Boisseau.
It is the Minister’s position that the application is made too late and with inadequate explanation as to why it is necessary. In addition, as previously indicated, Mr Boisseau has deposed that he has listened to the interview between the applicant and the ministerial delegate and asserts that the applicant did, in fact, raise the claim regarding his home being invaded.
The Minister objects to this aspect of Mr Boisseau’s affidavit, again on the basis that it is out of time, but more significantly because a full transcript of the interview between the applicant and the delegate has not been provided and therefore the statements attributed to the applicant cannot be put in context.
The court has a wide discretion to allow the amendment of documents filed in proceedings.[31] The Minister concedes that the amendment in question does not occasion it any significant degree of prejudice. In these circumstances, there is no substance to this objection. I will allow the further amended application to proceed.
[31] See Federal Circuit Court Rules 1999 Division 7.1
More significantly, it is Ms Tattersall’s submission that the further amended application has no reasonable prospects of being successful. In these circumstances, notwithstanding the admonitions provided by Wigney J in SZTES, she submits the court should refuse the extension of time and dismiss the application.
Ms Tattersall also relies on the analysis provided by Thawley J in CCQ17. As previously indicated, His Honour considered that there may be circumstances in which it would be legally unreasonable for the IAA to fail to consider the exercise of the discretion conferred by section 473DC. However, the onus of establishing the factual basis of the unreasonableness of the exercise of this discretion lies on the applicant concerned.
In this context, Ms Tattersall submits that the applicant has not discharged this onus. In particular, it is not necessary for the IAA to specifically advert to its exercise of this discretion, given the contents of section 473EA(1) and what is stipulated as required to be provided in each relevant decision of the IAA.
In addition, Ms Tattersall contends that any failure to address the discretion has not been shown to be material to the decision reached by the IAA. Essentially, she contends that the delegate, on the one hand and the IAA, on the other have each used the DFAT report then available to each of them in the same way.
Ms Tattersall also refutes any suggestion that the new information was dispositive of the issues in the case, which turned on whether it was or was not accepted that there was a real chance of the applicant being subject to persecution if returned to Sri Lanka. This turned on the assessment of the applicant’s credibility, both before the delegate and then the IAA.
In all these circumstances, Mr Tattersall contends that the discretion provided to the IAA, under section 473DC(3), and whether such discretion has been exercised in a legally reasonable way, must be examined within the overall parameters of the section, and the whole of Part 7AA, which provides restrictions on the obtaining of new information and limits the conduct of the referred review process generally. She contends that the discretion, arising in this case, has axiomatically been reasonably exercised and the contrary is not reasonably arguable.
She further contends, in contrast to Dr Churches, that the applicant has not provided an adequate explanation of the delay in bringing his application. It is her submission that the onus was on the applicant, rather than his migration adviser, to make himself aware of the applicable time frames.
In any event, she points to the fact that the applicant has not provided any independent evidence to support his claim that he communicated with his agent following receipt of the relevant decision, which he could not read and this is, in any event, somewhat inconsistent with his evidence that he did not, in fact, receive the decision in question.
Ms Tattersall characterises the delay involved as being significant. Quite properly, she concedes the delay has occasioned no significant prejudice to the Minister. However, in her submission, it would not be in the interests of the administration of justice to extend the time limit given the application itself does not disclose sufficient merit to justify such an outcome.
Conclusions
The central issue arising from the most recently amended ground of review is whether the new country information gave rise to a new issue, or tranche of new issues, of such significance that considerations of fairness dictated that the applicant should have been alerted to this information, prior to the review being completed.
In Minister for Immigration & Border Protection v Stretton[32] Allsop CJ indicated the difficulty arising for courts, particularly those exercising appellate or supervisory jurisdictions, of attempting to define, in a proscriptive sense, what was meant by legal unreasonableness. In His Honour’s phraseology it is a concept “not amenable to minute and rigidly-defined categorisation or a precise textual formulary”.[33]
[32] Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1
[33] Ibid at [10]
This was particularly so in respect of the application of the concept to the outcome of the decision in question, particularly given that decision-makers necessarily are endowed with a certain level of freedom in which to make their decision and within such freedom decision-makers may make different decisions, which cannot be criticised on the basis of being different.
Accordingly, the task of reviewing for jurisdictional error is not one of definition but of characterisation. Allsop CJ said as follows:
“The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.” [34]
[34] Stretton (supra) at [11]
Accordingly, the starting point in respect of whether the discretion, which is the focus of the review ground, was exercised in a legally reasonable manner is to examine firstly the terms, scope and purpose of the applicable statutory power before turning to consider whether there has been a failure to exercise the relevant power in a manner which can be characterised as being legally unreasonable.[35]
[35] See CCQ17 (supra) at [51]
In this context, the following observations, in respect of Part 7AA of the Act, appear to me to be germane:
·The IAA is to provide a mechanism of limited review [section 473FA];
·The rules of natural justice are restricted and, in particular, Part 7AA does not require the IAA to provide to a referred applicant any material that was before the Minister [section 473DA];
·Section 473DE(3)(a) specifically contemplates the IAA using country information as a reason for affirming a decision without affording any opportunity to a referred applicant to be heard;
·Section 473DC(2) indicates that the IAA is not subject to a duty to get, request or accept new information;
·Exceptional circumstances must exist to justify the consideration of new information; and
·The exceptional circumstances are defined by two overlapping considerations, relating to the information’s earlier inaccessibility and it being credible personal information germane to the referred applicant.
In his review of the statutory provisions, provided in CCQ17 Thawley J categorised them as providing a form of limited review on the papers with a default position of not accepting or requesting new information.
The ministerial delegate had country information, relevant to Sri Lanka, in the form of the 2015 DFAT Country Information Report. At this stage, it was noted that, up until the end of the civil war in May 2009, Tamils had been subject to persecution, at the hands of the Sri Lankan authorities because of their ethnicity.
However DFAT assessed that in 2015 there were no longer any official discriminatory measures against Tamils, who were more confident of expressing their rights under Sri Lankan law. It was further noted that extrajudicial killings, disappearances and kidnappings for ransom had also fallen considerably since 2009. The 2015 DFAT report also noted that 1,500 failed Tamil asylum seekers had been returned to Sri Lanka, since the end of the civil war, from Australia.
The 2017 DFAT report must be characterised as being new in the sense that it was not before the original decision-maker, having been compiled after the referred determination had been made. But in my view the information it contained cannot be described as being radically different in nature than the earlier report.
As with the 2015 report, the 2017 report advised that the monitoring of Tamils had decreased under the new government. This supported the IAA’s seminal finding that, as the delegate found, the situation for Tamils, in Sri Lanka, had improved since the applicant left the country in 2012. As in 2015, the 2017 report noted no incidence of failed asylum seekers being subject to adverse attention on that basis alone.
Both the delegate and the IAA had cause to doubt the credibility of some aspects of the applicant’s claim that he had been subject to incidents of state-sanctioned extortion, whilst not ruling out the possibility that he had been subject to some opportunistic episodes of criminality.
Given the generic nature of the new country information, the IAA was not required to give the information to the applicant for comment. Given the finding made by the IAA about the applicant’s claims for protection, I do not consider that the new country information can be regarded as being central or pivotal to the disposition of the claim.
The IAA, on the basis of other findings germane to the applicant, did not accept either the undated letter of the JP or Mr Kishore’s letter of 10 January 2016 as being representative of the applicant’s situation in Sri Lanka. This was a finding of fact.
I do not consider that considerations of fairness required the IAA to refer the more recent but still generic country information to the applicant for his potential comment, given the nature of the review process envisaged by Part 7AA and the closely curtailed process by which the IAA can, in any event, access new information.
In my view, there is no indication that the IAA utilised the 2017 report in a materially different way to that in which the delegate utilised the 2015 report. As such, I do not consider that it can be characterised as legally unreasonable that the applicant was not provided the 2017 report. The more recent report was not influential, in any way whatsoever, in respect of the manner in which the IAA founded its conclusions regarding the credibility of the applicant’s account. Otherwise the same materials were before both the delegate and the IAA.
In all these circumstances, I have reached the conclusion that the applicant has not presented a case which has prospects of securing the relief sought by him, namely the quashing of the IAA’s decision on the basis that it represents a legally unreasonable exercise of the power reposed in it.
I appreciate the moment of the refusal to grant an extension of time to the applicant concerned. The grant of such an extension is governed by what is assessed to be in the overall interests of the administration of justice.
The merits of the particular case concerned are not the only factor relevant to whether an extension should be granted. It is also necessary to consider the length of the delay involved; the explanation proffered for the delay; and any prejudice to be accorded to the respondent concerned.
To deal with the least controversial aspect first. The Minister concedes the delay will not accord it any prejudice. However counsel for the Minister characterises the length of the delay as being significant. It cannot be characterised as a short delay. It is around four times longer than the period stipulated in the applicable legislation. Courts are not in a position to overlook the limitation period imposed by the legislature.
However, in this context, for obvious reasons, it is in the interests of justice that the court considers the subjective features of the applicant concerned and, in particular, the explanation as to why the relevant application was not filed within time. Axiomatically, the applicant is a person who does not speak English with any degree of fluency. In addition, it must be the case that he has little, if any, familiarity with the legal processes in this country.
As such, for obvious reasons, he is likely to be heavily reliant on the advice provided to him by others. As Mortimer J stipulates in MZZIV, I must be careful not to overlook these factors of apparent disadvantage pertaining to the applicant. However these are not the only factors to be considered in the exercise of the discretion to extend time.
I must also consider what the applicant did or did not do during the period of the delay and any explanation for his conduct in this regard. In this context, the Minister contends that there is a level of inconsistency in the applicant’s affidavit material as to whether he did or did not receive the IAA decision.
It is submitted that, in his affidavit of 16 August 2017, the applicant ostensibly conceded that he had received a letter on 20 February 2017, which he did not understand and so forwarded on to his advisor for comment. Thereafter, the applicant contends that he heard nothing further about the letter, from the advisor, until about a month later, when all of his housemates started to receive their correspondence from the IAA, which resulted in him contacting the advisor and being told that he should expect delays in receiving his decision.
Counsel for the Minister contends that there is a significant level of inconsistency in this evidence, which is unsupported by any corroborative source, such as the adviser concerned. In effect, in the absence of any inculpatory evidence from the advisor, the applicant seeks to blame the advisor for not doing more about the letter, which he personally received.
In addition, in his affidavit, the applicant concedes that when he asked one of his friends to interpret the letter of 20 February 2017, in August of 2017, it became apparent that it was the relevant IAA decision. So, it is apparent the applicant did receive the decision and, at best, did little about it other than to forward it to his adviser.
In my view, given the length of the delay in question and the level of the explanation given by the applicant, which seeks to level unsupported criticism at the applicant’s adviser for not telling him what he should do about the letter, which he had not otherwise sought to clarify until too late, it seems to me that the following comments of Forster J in SZSDA v Minister for Immigration & Citizenship[36] are relevant:
“Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.”
In all the circumstances of this matter, particularly given the length of the delay and notwithstanding the difficulties surrounding the applicant, I do not consider that the applicant’s explanation for the delay can be considered satisfactory or acceptable.
[36] SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [38]
In SZSDA, Forster J went on to say that the more important consideration, which needed to be addressed in an extension of time application was the real prospects of obtaining judicial review. Given the length of the delay, notwithstanding the sympathy likely to be accorded to a non-English speaking litigant, I do not consider that it would be congruent with the proper administration of justice to grant an extension of time in order to enable the applicant to argue a case further, which I have assessed to have little merit.
Given the limited nature of the review provided by Part 7AA, I can see no procedural unfairness in the fact of the applicant not being provided with the 2017 DFAT report. I consider that the applicant does not have a real prospect of successfully pursuing his application further, if granted an extension of time.
For these reasons the application for an extension of time is dismissed and I will direct that the applicant pay the Minister’s costs fixed in the sum of three thousand five hundred dollars ($3,500).
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty nine (139) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 4 December 2019
0
13
5