Edj17 v Minister for Immigration
[2018] FCCA 2320
•22 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDJ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2320 |
| Catchwords: PRACTICE AND PROCEDURE – Application for extension of time – no prejudice contended by minister – applicant commenced proceeding twenty months out of time – inadequate explanation for delay – no evidence adduced to support grounds for an extension of time – application for extension of time refused. |
| Legislation: Migration Act 1958, ss. 36(2)(a), 36(2)(aa), 426A, 477 |
| Cases cited: AQN15 v Minister for Immigration & Anor [2016] FCA 571 Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 MZABP v Minister for Immigration and Border Protection and Ors (2015) 242 CR 585 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 |
| Applicant: | EDJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1994 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 13 August 2018 |
| Date of Last Submission: | 13 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 22 August 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | DLA Piper Australia |
ORDERS
The application filed on 15 September 2017 for an extension of time under s 477(2) of the Migration Act is refused.
The applicant pay the first respondent’s costs in the fixed sum of $3 667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1994 of 2017
| EDJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant required an extension of time to commence this proceeding.
His application for judicial review was filed on 15 September 2017 in relation to a decision of the Administrative Appeals Tribunal made 9 December 2015. The tribunal affirmed a decision of the minister’s delegate not to grant the applicant the protection visa he sought.
The extension of time application
On the hearing of this application for an extension of time the applicant was required to demonstrate that –
a)he had an acceptable explanation for the delay in commencing this proceeding;
b)no prejudice was occasioned to the minister by the grant of an extension of time; and
c)the applicant had an arguable case on the substantive application for judicial review.
The application to commence this proceeding was filed approximately 20 months beyond the date limited by s 477 of the Migration Act (“Act”). Despite being ordered to file additional material 28 days prior to the hearing on 6 August 2018, the applicant did not file and serve an affidavit deposing to the reasons for the significant delay. As matters stood, the applicant gave no explanation let alone an acceptable explanation for the delay in commencing this proceeding. That weighed heavily in the balance of whether to make an order in his favour on his application for an extension of time. However, that was not the only consideration.
Next, it was relevant to address any prejudice that may be occasioned by the grant of leave. The minister did not contend that any prejudice flowed from the late filing of this application.
Next, it was necessary for me to consider the merits of the applicant’s case. That was because no useful purpose would be served in the grant of an extension of time if the applicant’s merits of the case were not arguable.
For the reasons that follow, I was not persuaded that the applicant raised an arguable case that he was entitled to the relief he sought in this case. In the result I have concluded that no useful purpose would be served in granting the extension of time that the applicant sought.
Applying the observations of Mortimer J in MZABP v Minister for Immigration and Border Protection and Ors,[1] a judge in my shoes hearing an application for an extension of time must be careful not to transform that application into a de facto full hearing of the application for judicial review. My assessment is necessarily impressionistic, as Mortimer J opined in MZABP.
[1] (2015) 242 FCR 585
With that basic introduction, it is necessary to turn to the more pertinent issues in this case.
The applicant’s claims
The applicant is a male citizen of India born on 26 June 1983. He arrived in Australia on 11 July 2009. He applied for a protection (class XA) (subclass 866) visa on 20 November 2013. In his application he made the following claims –
a)while studying at a tertiary college in India, he joined a student political party known as the Students Federation of India (“SFI”);
b)in the lead up to student elections, riots were commonplace between SFI members and an opposing faction known as Akhil Bharatiya Vidayarthi Parishad (“ABVP”);
c)in 2003 the applicant refused an invitation to join ABVP after which members of that party beat him breaking his wrist in the process, he later reporting the incident to police;
d)prior to his departure to Australia in 2009 the applicant was not subjected to any further incidents; and
e)in 2013 the applicant’s brother warned the applicant that elections were pending and that the applicant should not return because “people were still looking for” the applicant.
The delegate’s decision
On 26 August 2014 the minister’s delegate refused to grant the applicant the protection visa he sought, finding that the applicant’s claims were not genuine or credible.
The tribunal’s decision
On 30 September 2014 the applicant applied for a merits review before the tribunal.
On 2 November 2015 the tribunal invited the applicant to attend at a hearing on 8 December 2015. The tribunal sent text reminders to the applicant of the hearing on 1 December 2015 and 7 December 2015. The applicant did not reply to the hearing invitation nor did he respond to the text reminders and did not attend the hearing on 8 December 2015. On 9 December 2015 the tribunal decided to affirm the delegate’s decision not to grant the applicant the protection visa the applicant sought and relied on s 426A of the Act in proceeding in that manner.
On 9 December 2015 the tribunal wrote to the applicant informing him of the tribunal’s decision and also informing the applicant that he had 35 days from the date of the decision within which to commence this proceeding for judicial review.
As mentioned above, the applicant commenced this proceeding approximately 20 months out of time.
Without descending to the detail of the tribunal’s reasons, it is important to record that the tribunal found that the applicant’s claims were vague and that they lacked detail.[2] At paragraph 24 of its reasons the tribunal recorded that the applicant’s failure to attend the hearing meant that the tribunal was unable to explore the applicant’s claims for protection with him or to seek further information on a range of issues relevant to his application. Between paragraphs 26 and 29 of its reasons the tribunal recorded that it could have explored a variety of issues with the applicant, if he had attended the hearing. Those included –
a)his involvement role and activities with SFI;
b)his claimed incidents of harm at the hands of members of the ABVP party;
c)his complaint to the police;
d)his fear of harm; and
e)his explanation for the delay in applying for protection.
[2] Administrative Appeals Tribunal decision record (9 December 2015) [24]
The tribunal reasoned that the information given by the applicant was vague and limited. The tribunal said it did not accept that the applicant feared harm if returned to India from ABPV or anyone else.
The tribunal rejected the applicant’s claims to protection under ss 36(2)(a) or 36(2)(aa) of the Act.
Before this court
In this court the applicant relied on two grounds in support of his application for an extension of time. With errors in the original they were –
1.I was on depression because I lost my family.
2.A terrorist attack was happened that time at my home town.
Acknowledging that English may not be the applicant’s first language and that those paragraphs were not as eloquent as they may have been had they been prepared by a legal practitioner, whatever the applicant sought to convey was not supported by affidavit evidence. When the applicant appeared before me I asked him to tell me in his own words whatever he wished to tell me about this case. He said the department did not tell him that he could apply to the Federal Circuit Court of Australia. He also said he had applied for information under freedom of information legislation from the department. Those matters did not appear to have any bearing on the matters raised in support of the application for an extension of time. At all events, on the hearing of a judicial review application, the court is concerned with the activities of the tribunal not with the activities of the delegate as was held in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs.[3] Further, precisely how the obtaining of documents under freedom of information legislation may have been relevant was not stated. No medical evidence was adduced to support his contentions that he was depressed or in some way impaired from applying to the court within the 35 day period stated in the Act. He gave no evidence of any description about a terrorist attack.
[3] (2004) 139 FCR 344
No basis was made out for the grounds upon which he relied as explaining his delay in applying to this court.
Even though I am required to engage in an impressionistic assessment of the basis of this claim it is necessary nonetheless to examine, albeit in less detail than would otherwise be the case, the grounds he advanced in his application to this court. With errors in the original they were as follows –
1.The application was not taken in consideration according to the law.
2.Department didn’t notify me with accurate documents when they refused my file.
3.Definition of a refugee was not taken into consideration while delivering the judgment.
4.Department didn’t send me my copy of refusal under what circumstances they dismiss my case.
None of the grounds were supported by particulars. On that basis alone, a line of authority justifies the dismissal of the application, those cases being AQN15 v Minister for Immigration & Anor,[4] BHK15 v Minister for Immigration and Border Protection,[5] WZATH v Minister for Immigration and Border Protection,[6] WZAVW v Minister for Immigration and Border Protection.[7]
[4] [2016] FCA 571
[5] [2016] FCA 569
[6] [2014] FCA 969
[7] [2016] FCA 760
Under ground one, the applicant did not say in what respect his application was not considered according to law by the tribunal. In the absence of particulars I was unable to understand the propositions of fact or law that he said infected the tribunal’s reasons. Ground one did not appear to be arguable.
Pursuant to ground two the applicant called in issue some deficiency by the department. Judicial review is not concerned with the activities of the department. That ground did not appear to be arguable.
Pursuant to ground three the applicant invited some challenge to the tribunal’s interpretation of “refugee”. In fact, the tribunal addressed in detail the elements of s 36(2)(a) and s 36(2)(aa) of the Act between paragraphs 5 and 18 of its reasons. In the absence of details of the way he challenged the tribunal’s construction of the word “refugee” it was not possible to understand his contentions in ground three. That ground did not appear to be arguable
Pursuant to ground four the applicant called in issue a failure by the department, so he said. The material in the court book revealed that the applicant was notified correctly of the delegate’s decision and of the tribunal’s decision. In the absence of particulars of his contentions, I was unable to understand his grievance in relation to ground four. That ground did not appear to be arguable.
It must not be forgotten that it fell to the applicant to provide an adequate explanation for his delay in commencing this proceeding in court within the prescribed time. He failed to do so. It fell to the applicant to demonstrate that he had an arguable case, as has been held in such cases as Minister for Immigration and Multicultural Affairs v Lay Lat,[8] Minister for Immigration and Citizenship v Le[9] and Toura v Minister for Immigration and Border Protection,[10] an unsuccessful appear from one of my own decisions. He failed to do so.
[8] (2006) 151 FCR 214
[9] (2007) 164 FCR 151
[10] [2017] FCA 1405
In those circumstances I was not persuaded that the applicant was entitled to the grant an extension of time.
I dismiss this application for an extension of time and order the applicant pay the minister’s costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 30 August 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Appeal
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