DZJ17 v Minister for Home Affairs
[2019] FCCA 1586
•3 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZJ17 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1586 |
| Catchwords: MIGRATION – Protection visa – loan sharks – failure to appear at Tribunal hearing – reinstatement of application – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 425A, 426, 441A, 441C, 477 |
| Cases cited: AYI16 v Minister for Immigration and Border Protection (2017) FCA 1358 |
| Applicant: | DZJ17 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1927 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 3 June 2019 |
| Date of Last Submission: | 3 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 3 June 2019 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor Advocate for the Respondents: | Ms Zinn |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The application pursuant to s 477(2) of the Migration Act 1958 (Cth) to extend the time within which an application be made to seek judicial review of the decision of the Administrative Appeals Tribunal made on 1 March 2017 affirming a decision of a delegate of the first respondent to refuse to grant the applicant a Protection (subclass 866) visa is dismissed.
The applicant pay the costs of the first respondent fixed at $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1927 of 2017
| DZJ17 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore Revised from Transcript)
Introduction
By application filed on 5 September 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 March 2017 confirming its decision made on 13 February 2017 to dismiss the applicant’s application for review of a delegate’s decision, by reason of his failure to appear at the scheduled hearing. As the Tribunal’s decision confirming its earlier decision to dismiss the application was made on 1 March 2017, the applicant had until 5 April 2017 to make an application to this court for judicial review.
The applicant did not do so within that time and, indeed, did not file an application until 5 September 2017, being some 152 days outside the 35-day time limit prescribed by section 477(1) of the Migration Act 1958 (Cth) (Act). By his application, the applicant seeks an extension of time in which to apply for judicial review. When filing his application in this court the applicant also swore an affidavit in which he deposed only that he sought judicial review and that the:
. . . decision may be quashed AAT has made a jurisdictional error. I have been denied fair procedure by the Tribunal.
The applicant exhibited a copy of the Tribunal’s Reasons to the affidavit.
Background
The applicant is a Malaysian citizen aged 32 years who first arrived in Australia on 28 January 2016, holding an electronic travel authority visa which was valid until 28 April 2016.
On 22 April 2016 the applicant lodged a Protection visa application in which he stated that he had left Malaysia to “look out for better life and seek protection” and to be away from people whom he claimed were dangerous and had harmed him in the past. The applicant claimed he had started a business with a friend, who had borrowed money, defaulted on the loan, and fled; leaving the applicant to deal with the money lender’s demands for repayment. The applicant claimed he received death threats on a daily basis and feared that the debt collectors would attack and kill him. He claimed that his wife reported the debt collectors were still looking for him, and he feared they would harm his wife and children. He also claimed he was unable to report his difficulties with the debt collectors by reason that the police were ineffective and the debt collectors would kill him.
On 9 June 2016, a delegate of the Minister (delegate) refused to grant the applicant a Protection visa, not being satisfied that the applicant had a well-founded fear of harm or was otherwise entitled to complementary protection. In deciding to refuse the visa application the delegate considered independent country information about loan sharking, criminal gangs and law enforcement in Malaysia; finding that the applicant could obtain effective State protection such that he would not face a risk of significant harm if he returned to Malaysia.
On 16 June 2016, the applicant lodged an application with the Tribunal. In his application, the applicant provided an email address: [email protected].
On 19 January 2017, the Tribunal invited the applicant to attend a hearing scheduled to take place on 13 February 2017. The invitation was sent to the applicant at his nominated email address.
The hearing invitation was, in my opinion, a valid invitation.
As noted, on 13 February 2017, the Tribunal made a decision to dismiss the application for review. On 1 March 2017, the Tribunal confirmed that decision. The applicant did not seek reinstatement of his application before the Tribunal.
The Tribunal reasoned that, as the applicant had not applied for reinstatement of his application within the 14-day period stipulated by section 426B of the Act, it was obliged to confirm the decision to dismiss the application. The Tribunal confirmed its decision to dismiss that application.
As noted, on 5 September 2017, the applicant filed an application in this court seeking, at the same time, an extension of the period within which to apply for judicial review of the Tribunal’s decision.
The applicant appeared before this court on 16 May 2018 when orders and directions were made, by consent, affording the applicant an opportunity to file and serve an amended proposed application, supplementary court book and written submissions. Despite those opportunities the applicant did not do so.
On 21 September 2018, a Response was filed on behalf of the Minister opposing the application. The Minister’s Response is notable as it provides some context to the present application. In particular, it stated that applicant had failed to file any affidavit evidence explaining the delay or showing why it was necessary in the interests of the administration of justice for the court to grant an extension of time. It also noted that the application failed to raise an arguable case for relief and sought, impermissibly, to obtain merits review of the Tribunal’s decision and contained no proper grounds of review.
In all of those circumstances the applicant had been on notice since 21 September 2017 of the substantive bases on which review of the Tribunal’s decision was opposed.
Before me, the applicant produced a receipt dated 31 January 2019 which supported his submission that he had applied to a specialist firm of migration lawyers for legal advice on that date. He also produced an email dated 20 March 2019 indicating that the lawyers would be prepared to act for him providing that sufficient funds were paid, in advance, to their trust account. The applicant submitted that in March 2019 he did not have sufficient funds to retain those lawyers. He asserted that he now had the money and wished to retain those lawyers.
The applicant’s submissions may be understood as indicating that the applicant sought an adjournment of the hearing. The application was fixed for hearing by orders made by consent on 16 May 2018. While the application for an adjournment was opposed, the court must consider for itself whether to exercise its broad discretion in favour of an adjournment. In this context, I note that the application for judicial review and an extension of time was filed on 5 September 2017.
It follows that the applicant has had more than one and a half years to seek legal representation and to present his evidence and submissions to this court respecting the application for and extension of time and the application for judicial review. I agree in the Minister’s submissions that it is relevant to have regard to the prospects of success of the substantive application in evaluating the merits of an application for an adjournment.
As the factors relevant to the application for an adjournment overlap in significant measure with those which are relevant for the application for an extension of time, I consider each of those matters in turn.
Applicable Principles
By section 77(1), a 35-day time limit is fixed for the making of an application for judicial review of a migration decision. The court may extend the time for filing an application: section 477(2).
The power to extend time is made subject to two conditions:
a)an application has been made in writing for such an extension; and
b)the court is satisfied that it is necessary in the interests of the administration of justice to do so.
The first of those conditions was met by the request for an extension of time as made in the application for judicial review. The second condition is in issue.
The discretion to extend time for the commencement of proceedings is a deliberately broad one. It is well settled that in the determination of whether an extension of time should be granted, the court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent if the extension was granted, the merits of the substantive application and any other factor considered to be relevant: Hunter Valley Developments v Cohen (1984) 3 FCR 344, 348-9; AYI16 v Minister for Immigration and Border Protection (2017) FCA 1358, [10-11].
While the discretion is broad, the court should not grant an application for an extension of time unless it is proper to do so. That this is so brings to attention that legislative time limits are not to be ignored.
Consideration
The grounds of the application for an extension of time were three-fold:
a)After my visa was refused by Immigration I was advised by a friend to do an appeal application to the Tribunal. The application was lodged to the AAT by my friend.
b)AAT has failed to make enough effort to contact me to advise that my hearing has been scheduled, and my application was dismissed without me even knowing that a hearing has been arranged for me.
c)I never received any email, phone calls or text messages about hearing, and that’s the reason I need extension of time to do application . . .
Whatever else may be said, the grounds of the application are devoid of particulars and provide a narrative of the applicant’s complaints.
Length of Delay and Explanation
The application was filed more than 150 days out of time. Where an extension is sought following a lengthy delay before making the application, it would, in general, require exceptional circumstances to be properly explained in order for the court to be satisfied it was necessary in the interests of justice to grant that relief: Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89, [3] (Gageler J).
In my view, the applicant has made no attempt, despite the opportunities extended to him, to explain the lengthy delay in commencing this proceeding. Indeed, his affidavit does not proffer any evidence by way of explanation for delay or otherwise why it is necessary in the interests of the administration of justice for an extension of time to be granted.
Insofar as the three grounds for an extension of time are set out in the application, there is no contention made which addresses why the applicant delayed for a period of more than 150 days before commencing the proceeding or why he took no steps to lodge the application promptly.
In such applications, one approach is to focus on the adequacy of the explanation for the delay. The perceived benefit of adopting this approach is that it allows for the merits of the grounds of review to be evaluated at the hearing: cf MZABP v Minister for Immigration and Border Protection (2016) 242 FCR 585, [56] (Mortimer J). Further, as the discretion is a deliberately broad one, the combined considerations of delay and the absence of an adequate explanation may support a decision to refuse an extension, notwithstanding, that a finding of jurisdictional error might be made:AZAFJ v Minister for Immigration and Border Protection (2016) FCA 291, [51] (Bromwich J).
Prejudice
The Minister candidly acknowledged that no prejudice would be suffered by the grant of an extension. However, the absence of prejudice is not of itself sufficient or capable of supporting a conclusion that it is necessary and in the interests of administration of justice to grant an extension: SZTRY v Minister for Immigration and Border Protection (2015) FCAFC 86, 6 (The Court).
Merits of Proposed Application
The Minister submitted that there was insufficient merit in any of the grounds of judicial review to support a conclusion that it was necessary in the interests of the administration of justice to grant an extension of time. I have set out in summary the background to the applicant’s claim for protection above.
Although the application contains eight grounds of review, it is convenient to address them in groupings:
Grounds 1–2.
Grounds 1-2 read:
i)DIBP refused my application and I lodged review application with help of my friend who advised me that I would get either an email or a contact from AAT to advise no need to go and present my matter.
ii)AAT has dismissed my matter on the basis that I never attempted to attend hearing or reply to hearing response.
These proposed grounds of review are not proper grounds of review, but provide the background on the basis on which ensuing grounds are made.
Grounds 3, 4 & 5
These grounds read:
iii)I would like to advise FCC that I was not contacted by AAT in any way. Neither I was sent an email, phone call or a text message advising my scheduled hearing.
iv)AAT has claimed they have – that they have given 14 days to reinstate my matter. I was never advised by hearing in the first place, so I could not apply for reinstate (sic).
v)I believe AAT has failed on their obligation to contact me or make enough efforts to make me aware that my hearing was scheduled when I failed to response (sic) to hearing invitation.
In substance, these grounds complain that the Tribunal did not properly notify the applicant of his scheduled hearing.
From the materials in the court book, it is clear that the Tribunal did send the applicant an email on 19 January 2017 advising him of the scheduled hearing. Relevantly, that email was sent to the email address which was set out in the application for review by the Tribunal. Further, as stated above I am satisfied that the Tribunal’s hearing invitation complied with the applicable legislative requirements. In my opinion, the hearing invitation was valid by reason that:
a)it contained an invitation to the applicant to appear before it to give evidence: ss 425 (1) and 426(1)(a);
b)it notified the applicant that he could give the Tribunal written notice to obtain oral evidence from other persons: s 426(1)(b);
c)it notified the applicant of the specified day, time and place of the hearing: s 425A(1);
d)it was given to the applicant by one of the means specified in s 441A (namely, by email) which was an approved method for the Tribunal to give the invitation to the applicant: s 425A(2)(a);
e)it complied with s 441A(5) by being transmitted to the email address which was contained in the application for review;
f)it was taken to have been received by the applicant at the end of the day on which it was transmitted: s 441C(5);
g)it complied with s 425A(3) by providing the applicant with a period of time that was at least a prescribed period of 14 days: Reg 4.35D, Migration Regulations 1994 (Cth); and
h)it complied with s 425A(4) by containing a statement of the effect of s 426A; namely, the options which were available to the Tribunal if the applicant failed to appear before it at the scheduled hearing.
It was in those circumstances that the Tribunal made its decision to dismiss the application and to then confirm that earlier decision. The Tribunal only confirmed its earlier decision in circumstances where the applicant did not apply for reinstatement. Contrary to the applicant’s submissions and the matters contained in his application, where a Tribunal has complied with ss 425 and 425A of the Act in inviting an applicant to attend a hearing, it may proceed under s 426A to consider and decide the matter without conducting any further inquiries: SZIGQ v Minister for Immigration and Citizenship (2007) FCA 328, [5]; Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439, [39].
There is no evidence in this application that explains why the applicant did not receive the letter inviting him to the hearing. Documents were transmitted by the Tribunal to the email address contained in his application for review. I accept the Minister’s submission that the absence of any SMS hearing reminders or other means of communication does not necessarily constitute error or error of a kind which would establish jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439, [39]; NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592.
In my opinion, the applicant is entitled to a consideration of the proposed grounds of review on the basis that they should be evaluated at a reasonably impressionistic level, such that the court be satisfied to a degree of confidence whether the grounds of review are arguable, reasonably arguable, sufficiently arguable or plainly hopeless: MZABP v Minister for Immigration and Border Protection (2016) FCAFC 110, [38] (The Court); see also MZABP v Minister for Immigration and Border Protection (2015) FCA 1391, [62-63]. Applying that comparatively low threshold, if the court is not satisfied that there are any, or any sufficiently arguable merits to the substantive application, it will not be in the interests of the administration of justice to exercise the power to grant an extension of time.
I also accept that in the consideration of whether the grounds of an application are sufficiently arguable, the court is not confined to a consideration of the proposed grounds of review, but also must engage with the Reasons of the Tribunal to consider whether the grounds are of any substance: see SZSZW v Minister for Immigration and Border Protection (at first instance) (2017) FCA 1544, [14-17] and on appeal (2018) FCAFC 82, [26-27].
For the reasons above, I am not satisfied that grounds 3, 4 or 5 are sufficiently arguable as to warrant the conclusion that it is necessary in the interests of the administration of justice to grant an extension of time.
Ground 6
Ground 6 reads:
I found about (sic) out about all this when I attended myself AAT to find out what’s happening with my application. Great deal of people being cheated in Australia who come here to seek refuge and I have also been provided wrong immigration advise (sic) and save some dollars. I chosen (sic) to get help from my friend and now AAT has not done what they supposed to do (errors in original).
I agree with the Minister’s submission that the generalised complaints made in ground 6 are unsupported and devoid of content for want of the meaningful particulars. Ground 6 would be susceptible to being dismissed on that basis alone.
The applicant has not furnished any evidence to explain the ‘wrong’ immigration advice that he received. And while he contends that he sought advice from a friend in a desire to “save some dollars”, there is no evidence whether, how or why he had been in any way cheated or misled by his friend in relation to the application. I do not accept that the generalised complaint contained in ground 6 rises to the level of being a sufficiently arguable ground of judicial review as to warrant a conclusions that it would be necessary in the interests of the administration of justice to grant an extension of time.
Ground 7
Ground 7 reads:
I have been denied fair procedure and jurisdictional error has been made by AAT and I should be given chance to present my matter as I have genuine fear for my life in Malaysia and would like to seek protection. I am genuine applicant for refugee visa and refusing to accept my application will [have] serious consequences for me.
Contrary to the proposed ground of review, no basis is shown why the Tribunal denied the applicant procedural fairness in any way. Contrary to the applicant’s contention, the Tribunal issued a valid invitation. In those circumstances, the dismissal of the application as confirmed by the Tribunal was an inevitable result in the absence of an application for reinstatement of his application for merits review.
Ground 7 seeks, in effect, a merits review, which this court has no jurisdiction to undertake: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
I do not think ground 7 discloses a sufficiently arguable ground of review as would warrant an extension of time.
Ground 8.
Ground 8 reads:
I would like to ask FCC to accept my application and let me continue this matter and give me chance to accept this matter.
As in Ground 7, Ground 8 also invites the court to engage in an impermissible merits review of the decision confirming the earlier decision of the Tribunal to dismiss the application for nonappearance. Ground 8 is not sufficiently arguable as to warrant an extension of time.
Conclusion
For the reasons above, I am not satisfied that it would be appropriate to grant the applicant further time in which to prepare for the hearing of this matter, which was set down, by consent, pursuant to an order made on 16 May 2018. I am fortified in that conclusion by the circumstance that the Minister’s response set out in detail the bases on which the application was opposed, together with the circumstance that the applicant has not, until very recently, taken steps to seek legal advice. Nor has he taken the opportunity to file further evidence (as the Minister’s response recognised was necessary) or to file submissions.
In all of the circumstances, I conclude that it is not appropriate to accede to the application for an adjournment. Nor, upon consideration of the issues of delay, explanation for delay, prejudice, and the relative merits of the proposed grounds of review, is it necessary in the interests of the administration of justice to grant an extension of time.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly
Associate:
Date: 3 June 2019
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