DWQ19 v Minister for Immigration

[2020] FCCA 3485

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWQ19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3485

Catchwords:
MIGRATION – Application for judicial review of decision made by the Administrative Appeals Tribunal – no satisfactory explanation for the delay – lack of merit of the substantive application – not in the interests of the administration of justice to extend time– application for extension of time refused – application otherwise dismissed.

Applicant: DWQ19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2588 of 2019

Judgment of: Judge Obradovic

Hearing date: 12 November 2020

Date of Last Submission: 12 November 2020

Delivered at: Parramatta

Delivered on: 12 November 2020

REPRESENTATION

Appearing for the Applicant: In person

Appearing for the First Respondent: Ms Zinn

Solicitors for the First Respondent: Mills Oakley

ORDERS

1. The Application for extension of time is refused.

2. The Application filed on 8 October 2019 is dismissed.

3. The Applicant is to pay the costs of the First Respondent fixed in the amount of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2588 of 2019

DWQ19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. Before me is an application for a judicial review commenced by way of an application filed on 8 October 2019, in respect of a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 28 August 2019. The applicant is self-represented today and assisted by a Mandarin interpreter. He relies, in addition to the application which he filed on 8 October 2019, an affidavit also filed on the same day. That affidavit does nothing further than annexe the relevant Tribunal decision.

2. The primary issue for the Court to determine today is whether the applicant should be granted an extension of time, as he did not make his application for judicial review within 35 days of the date of the Tribunal decision.

3. The applicant is six days out of time. It is not a particularly long period but nonetheless, it is an application that is out of time. When compared to the limitation period it is in fact a substantive portion of the limitation period of 35 days. In order to succeed in his extension of time application there are a number of matters that the applicant needs to satisfy the Court about. The applicant needs to satisfy the Court that the extension of time is in the interests of the administration of justice. In order to determine this issue, the Court looks at things such as the extent and the reason for the delay, whether there is any merit in the application, any prejudice to the respondent if the application is granted, any prejudice or impact on the applicant if the extension is not granted and the interests of the public at large. 

4. Parliament has deemed it appropriate that there be a 35 day limitation period for the commencement of actions such as this one. It is a very short limitation period. The applicant does not provide any evidence to explain the delay in commencing proceedings out of time. He has said from the Bar table today that he had a leg injury and that he was resting at home. He also said from the Bar table that he did not receive the notification in time.  Upon further inquiry, the applicant said that he did not receive it within 28 days.  The relevant period is 35 days; not 28. In any event, having regard to the material in the Court Book, particularly at page 113, the Court is satisfied that the applicant was notified of the Tribunal’s decision on 28 August 2019.

5. Even if there was a leg injury which the applicant had suffered, there is no expert or other evidence in relation to the effect of that leg injury and how or why it prevented the applicant from filing the application within the relevant time period. I am not satisfied that the applicant has explained the delay adequately.

6. In respect of the merits of the application, the applicant says that the Tribunal acted unfairly in rejecting his evidence that his head was hit and injured, and that the Tribunal said that he did not have any evidence but only his words. Said in another way, these grounds are really a complaint about the Tribunal not accepting the applicant as a witness of truth and disbelieving his claim.

7. None of the proposed grounds are a fair reflection of the Tribunal decision for reasons which follow.

8. The first ground which the applicant wants to proceed on, being that it was not fair to reject his evidence that his head was hit and injured, is really an application for a merits review and the Court is satisfied that prima facie, the Tribunal engaged in a process of weighing up the applicant’s evidence and assessing his credibility which was fair and appropriate in all of the circumstances. 

9. Next, the second ground: which is that the Tribunal essentially did not believe the applicant and that the applicant is not sure whether this is even legal. This is, once again, an application for a merits review and does not raise any jurisdiction error. There were serious issues of credibility of the applicant where he had provided documents to the Australian authorities on the application of his visa with which he entered the country, which he later told the Tribunal were not correct.  That is, he had entered Australia on false premises.  That is part of the reason why the Tribunal had concerns about the applicant’s credibility.

10. The Tribunal, in any event, asked the applicant to provide further evidence at paragraph 25, not only about the head injury but also in relation to the compulsory acquisition, and also in relation to the person who apparently had the same name as the applicant but who worked in Shanghai and who died in Israel, who the applicant maintained was responsible for doing all the paperwork and getting the visa for him.  The applicant tells the Court today that what he was asked by the Tribunal to do was to provide WeChat evidence with a dead person and when it was put to him that what he had in fact been asked to do was to provide evidence of his social media interactions with the person while that person was still alive, he said that none of that had existed. In any event, the Tribunal rejected, on a number of other bases, credibility of the applicant.

11. In relation to the third ground of the application, if time was to be extended, is an assertion that the Tribunal asked the applicant to get evidence from a dead man and that in the circumstances this was unfair. At paragraph 15 of the Tribunal’s decision, the Tribunal noted that the applicant had indicated in answer to a question whether he needed medical treatment for the injury – for the beating that he allegedly received – he said that his father-in-law had sent him to hospital but that he still had headaches when it rained. He also told the Tribunal that his daughter had taken photos but that the authorities had smashed her camera so that there was no photographic evidence.

12. At paragraph 25 of the Tribunal’s decision, the Tribunal notes that the applicant showed them a scar on his head but that the Tribunal said to him that that could be a scar from essentially any accident or incident and that believing him that the scar came from the beating that he received in the manner that he alleged would be to completely rely on his word in circumstances where there were serious questions regarding his credibility.  He was asked by the Tribunal if he could provide any evidence about the beating. The applicant said to the Court today that he is not able to provide any evidence because the government has blocked everything and that everything is electronic. This is not something that was said to the Tribunal.

13. For those reasons I am not satisfied that the applicant has a claim which is meritorious.

14. The interests of the public at large is such that the application for extension of time not be granted. It is a significant cost to the public, not only in terms of the Court proceedings but also in terms of significant resources which have already been allocated to this matter. I therefore refuse the application for extension of time and dismiss the application filed on 8 October 2019.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 22 December 2020