EDO19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 826
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EDO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 826
File number(s): ADG 396 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 14 September 2023 Catchwords: MIGRATION –Immigration Assessment Authority decision – refusal of Safe Haven Enterprise visa – application to extend time to file safe judicial review application - adjournment and extension of time applications
PRACTICE AND PROCEDURE – adjournment - application for adjournment of extension of time application to seek legal representation or advice – where matter on foot for more than three years – where significant delay by Court in listing extension of time application - where applicant self- represented and requires interpreter – effect of delay in listing – adjournment granted – further application for adjournment at adjourned hearing to seek legal representation – adjournment not granted
PRACTICE AND PROCEDURE - application for extension of time for judicial review of decision of Immigration Assessment Authority to refuse safe haven enterprise visa – whether in the interests of the administration of justice – factors for consideration - length of delay – explanation for delay – whether prejudice – whether sufficiently arguable merit in proposed judicial review application
Legislation: Constitution s 75(v)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Migration Act 1958 (Cth) ss 5, 5H, 36, 46A, 473CA, 473CB, 474DB, 473DD, 474, 476, 477, 477A
Cases cited: AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815
ADN15 for Minister for Immigration and Border Protection [2016] FCA 810
AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
BCX16 v Minister for Immigration and Border Protection [2019] FCA 465; (2019) 164 ALD 313
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BRJ16 v Minister for Immigration & Anor [2018] FCCA 2929
CUS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 293; (2022) 369 FLR 305
CXS18 v Minister for Home Affairs [2020] FCAFC 18
DBE19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 779
DQU16 v Minister for Home Affairs [2021] HCA 20; (2021) 273 CLR 1; (2021) 95 ALJR 352; (2021) 388 ALR 363
FRA18 v Minister for Home Affairs & Anor [2019] FCCA 2287
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458; (1990) 93 ALR 479
Genovese v BGC Construction Pty Ltd [2006] FMCA 1507
Gill v Minister for Immigration and Border Protection & Anor [2018] HCATrans 199
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185
Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819; (2022) 403 ALR 604
Mannv Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 570
McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Mokhlis v Minister for Home Affairs [2020] HCA 30; (2020) 94 ALJR 843; (2020) 382 ALR 1
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 231
Plaintiff M61/2010E v Commonwealth of Australia & Ors [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Tran v Minister for Immigration and Border Protection [2014] FCA 533
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
WZANW v Minister for Immigration & Anor [2009] FMCA 1075
WZAQB v Minister for Immigration & Anor [2012] FMCA 688
WZARX v Minister for Immigration and Border Protection [2014] FCA 423
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
WZAWB v Minister for Immigration and Border Protection [2016] FCCA 1345; (2016) 309 FLR 398
Zubair v Minister for Immigration and Border Protection [2017] FCCA 2905
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of last submission/s: 15 August 2023 Date of hearing: 6 June and 15 August 2023 Place: Adelaide Applicant: In person with the assistance of a Tamil interpreter Counsel for the First Respondent: Mr A Chan Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 396 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EDO19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
14 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The applicant’s application filed 23 October 2019 for an extension of time under s 477(2) of the Migration Act 1958 (Cth) in which to file an application under s 476 of the Migration Act 1958 (Cth) to review a decision of the Immigration Assessment Authority dated 27 May 2019 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
THE ADJOURNMENT AND EXTENSION OF TIME APPLICATIONS AND PROPOSED JUDICIAL REVIEW APPLICATION
Before the Court is an application for an extension of time (“Extension of Time Application”) lodged by the applicant (“EDO19”) on 23 October 2019 in the Adelaide Registry of the Court, pursuant to s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”), seeking an extension of time in which to file an application for judicial review pursuant to s 476 of the Migration Act (“Proposed Judicial Review Applicataion”). When the Extension of Time Application was called for hearing on 6 June 2023 EDO19 made an oral application to adjourn the Extension of Time Application to allow him to obtain legal representation or, at least, some legal advice.
The Proposed Judicial Review Application seeks review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) handed down 27 May 2019. The Authority affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse to grant EDO19 a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHE Visa”).
THE APPLICATION TO ADJOURN THE HEARING OF THE EXTENSION OF TIME APPLICATION
Adjournment application
As indicated in [1] above, when the Extension of Time Application was called for hearing on 6 June 2023 EDO19 made an oral application to adjourn the Extension of Time Application to allow him to obtain legal representation or, at least, some legal advice. In order to deal with this aspect of the matter, and to enable the Court’s reasons for making an order on 6 June 2023 adjourning the Extension of Time Application it is necessary to set out the litigation history of this matter.
The litigation history
Following the filing of the Extension of Time Application on 23 October 2019 in the Adelaide Registry of the Court the matter was the subject of consent orders made by a Registrar of the Court on 6 December 2019 in Chambers (“Registrar’s Orders”). The Registrar’s Orders were as follows:
1.The first respondent file and serve the court book by 17 January 2020.
2. The applicant has leave to file and serve any proposed amended application by 21 February 2020.
3. The applicant file and serve such further material upon which the applicant proposes to rely by 21 February 2020.
4. The first respondent file and serve any affidavit evidence upon which it proposes to rely by 6 March 2020.
5. The application for an extension of time and the final hearing be listed on a date to be advised.
6. The applicant file and serve an outline of submissions 28 days prior to the hearing.
7. The first respondent file and serve an outline of submissions 14 days prior to the hearing.
8. Liberty to any party to apply to the Court for a listing for further directions. The other party/parties must be given three days' clear notice of the time, date and place of that listing.
9. Costs be reserved.
The Court Book (“CB”) had been filed (on 5 December 2019) by the time the Registrar’s Orders were made. No documents were otherwise filed in compliance with the Registrar’s Orders.
For reasons which are not apparent from an examination of the file nothing was done to list the matter for a hearing of the Extension of Time Application (or for final hearing of the Proposed Judicial Review Application) until January 2023 when the matter was re-docketed to the now presiding Judge of the Court in the Perth Registry.
On 3 February 2023 the matter was listed for directions before the Court on 29 March 2023 (“March 2023 Directions Hearing”).
EDO19 appeared in person, with the assistance of an interpreter, at the March 2023 Directions Hearing.
At the March 2023 Directions Hearing the Court made orders setting aside orders 2 to 8 of the Registrar’s Orders and making orders in lieu thereof as follows:
a) the applicant file and serve any amended originating application, further affidavits, and an outline of submissions in relation to the extension of time application by 28 April 2023;
b)the first respondent file and serve any amended response, affidavits in reply, and an outline of submissions in relation to the extension of time application by 26 May 2023; and
c)the matter be listed for an in-person hearing of the extension of time application only on 6 June 2023 at 10.00am ACST before Judge Lucev in the Adelaide Registry of the Court.
(“March 2023 Orders”)
EDO19 did not file any documents in accordance with the March 2023 Orders.
On 18 May 2023 the Minister filed an outline of submissions in accordance with the March 2023 Orders.
At the hearing on 6 June 2023 EDO19 appeared, again with the assistance of an interpreter. At the commencement of the hearing of the Extension of Time Application on 6 June 2023 the Court:
(a)explained to EDO19 the factors to be taken into account by the Court when determining whether to extend time to file the Proposed Judicial Review Application; and
(b)in relation to one of those factors, namely whether there was sufficient merit in the Proposed Judicial Review Application to warrant extending time, noted that the Court looks only to see whether or not the Proposed Judicial Review Application makes out a sufficiently arguable case on the merits that the Authority Decision is affected by jurisdictional error, and gave a brief explanation to EDO19 as to what constituted jurisdictional error.
When called upon to make submissions in support of the Extension of Time Application EDO19 indicated that because of the high cost involved in getting a lawyer to represent him that he would need more time to work and collect enough money to engage a lawyer, and that he sought a lawyer for that purpose. EDO19 indicated that since the directions hearing on 29 March 2023 he had spoken to two or three lawyers and that he was “getting the money ready”. EDO19 said that he had not sought to engage a lawyer earlier because he had not had enough full-time work.
The adjournment of the Extension of Time Application was opposed by the Minister who argued that the application had been on foot for three and a half years, and that there was a significant backlog of applications in the Court, and that EDO19 had provided no compelling evidence that he had made any significant effort to obtain legal representation in the last three and a half years and it was not in the interests of the administration of justice for the Court to grant an adjournment. The Minister agreed that the delay in the matter being brought on, at least until the March 2023 Directions Hearing, was not one attributable to any fault on the part of EDO19. The Minister also agreed that the Registrar’s Orders were made by consent and did not give a hearing date, and that there was no evidence that EDO19 had obtained legal advice when he consented to the Registrar’s Orders. The Minister further agreed that there would not be any prejudice to the Minister by way of an adjournment of the Extension of Time Application to a hearing in mid-August 2023, or at least none that could not be cured by an award of costs.
The Court made orders on 6 June 2023 as follows:
1.The hearing of the extension of time application be adjourned to 10.00am on 15 August 2023 in Adelaide in person.
2.The Applicant pay the First Respondent’s costs of the adjournment in the sum of $1000 by 6 July 2023.
3.Reasons for Judgment in relation to orders 1 and 2 be delivered as part of any judgment on the extension of time application.
The Court also told EDO19 that he would be expected to attend on 15 August 2023, that is, attend in person himself, whether or not he had a lawyer, and if he did not have a lawyer, he would be expected to argue the matter as a self-represented litigant: Transcript, 6 June 2023, p 6.
Whether adjournment of Extension of Time Application ought to be granted
The Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCA Act”) provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a). That object must be read together with the provisions of the FCFCA Act relating to the overarching purpose of the civil practice and procedure provisions which provide, in s 190 of the FCFCOA Act that:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court's overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
In terms of the overarching purpose of the civil practice and procedure provisions in s 190 of the FCFCA Act, the Court also notes that it relates to the “just resolution of disputes”.
The Court is cognisant of the fact that there is no right to legal representation in migration judicial review proceedings: WZARX v Minister for Immigration and Border Protection [2014] FCA 423 at [13] per McKerracher J; SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [3]-[4] per Gyles J, but that does not mean that a self-represented litigant ought not necessarily be given a proper opportunity to seek to obtain a lawyer to provide assistance in a matter: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5] per Mortimer J; ADN15 for Minister for Immigration and Border Protection [2016] FCA 810 at [29] per Charlesworth J.
The Court notes that it is always important to consider the effect upon other litigants who might be denied a final hearing date (or any other hearing date) by reason of the vacation and re-listing of a matter: FCFCA Act, s 190(2)(c) and (d); AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“AON Risk Services”) at [95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ, and that might be a cogent consideration when regard is had to the number of migration judicial review applications presently not allocated to a Judge of the Court for hearing, a number which presently exceeds 15,000. To be weighed in the balance against that, is, however, the fact that EDO19 had to wait for more than three years from the time of the Registrar’s Orders for the matter to be allocated to a Judge for hearing of the Extension of Time Application. The nature and length of that delay is such that EDO19 might have been entitled to think that the matter was not going to be dealt with quickly, even when a Judge of the Court in the March 2023 Orders listed the Extension of Time Application for hearing on 6 June 2023. Moreover, the length of delay, and the lack of communication (there was none) from the Court to EDO19 during the period between the Registrar’s Orders and the listing in January 2023 for the March 2023 Directions Hearing meant that EDO19 was not in a position, notwithstanding the timelines in the Registrar’s Order for the filing of certain documents, to instruct a lawyer. The Court’s delay in listing the matter for hearing of the Extension of Time Application and the failure to communicate with EDO19 in relation thereto probably only served to increase “the manifest disadvantage from which … litigants-in-person with limited understanding of the English language suffer”: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 (“BKT17”) at [35] per Feutrill J. Further, the Court notes that there is no indication as “to what extent, if at all” the Registrar’s Orders “were made after an explanation of the process had been provided … or if the orders were made administratively without explanation”: BKT17 at [31] per Feutrill J, and that “orders that make provision for amending applications and filing submissions and affidavits where a party is a litigant-in-person and for whom English is not his or her first language may not remove the disadvantage of self-representation if no explanation of the process is provided to that litigant in his or her own language before the time for compliance with such orders expires or an oral hearing takes place”: BKT17 at [31] per Feutrill J. The fact that the Registrar’s Orders were made by consent in Chambers would render it likely that they were made without the explanation now seemingly required to be given consequent upon the judgment in BKT17.
The circumstances surrounding the Court’s delay, the nature of EDO19 as a self-represented non-English-speaking applicant, and the circumstances in which the Registrar’s Orders were likely made, are such as to favour a short adjournment to allow EDO19 to endeavour to obtain the legal advice that he seeks with respect to the Extension of Time Application.
The Court also observes that:
(a)it may be that, having obtained legal advice, the legal advice may assist in facilitating an efficient and just resolution of the dispute in accordance with the objects of the FCFCA Act; and
(b)if EDO19 is able to obtain a lawyer to assist him in this case, and even if that does not result in the resolution of the Extension of Time Application before the August 2023 hearing, representation of EDO19 by a lawyer (or even the giving of appropriate advice to EDO19 by a lawyer) may assist in a more efficient use of the Court’s time in hearing the Extension of Time Application, and a more just determination thereof.
Finally, the Court observes that any prejudice that the Minister suffered was capable of remedy by an award of costs, and an order for costs, in the amount sought by the Minister, was made on 6 June 2023.
In all of the above circumstances, on 6 June 2023 the Court was of the view that a short adjournment to allow EDO19 the opportunity to seek to obtain legal advice might assist in the just determination of the proceeding, and also result in a more efficient use of the Court’s judicial review resources at any hearing of the Extension of Time Application. Consequently, the Court made orders as set out at [15] above.
A FURTHER APPLICATION TO ADJOURN THE HEARING OF THE EXTENSION OF TIME APPLICATION
When the adjourned hearing was called on 15 August 2023 EDO19 appeared, with the assistance of an interpreter.
At the commencement of the 15 August 2023 hearing the Court said (Transcript, 15 August 2023, p 2) that:
(a)the matter had been adjourned from a hearing on 6 June 2023;
(b)an adjournment was sought at the June 2023 hearing for the purpose of EDO19 obtaining legal advice or legal representation; and
(c)when granting that adjournment, the Court had made it clear that if EDO19 did not obtain legal representation that the matter would proceed at the hearing on 15 August 2023 in any event.
At the 15 August 2023 hearing the Court once again explained the factors that the Court was likely to consider in relation to the Extension of Time Application. Having done so, the EDO19 then told the Court (Transcript, 15 August 2023, p 2):
(a)he had spoken to his lawyer;
(b)his lawyer had read his case; and
(c)his lawyer needed three to four months’ time to go through his case.
When asked whether the lawyer was in Court to give evidence or had sworn an affidavit EDO19 then said that he had spoken to “a few lawyers” and all of them told him the “same thing, they need three to four months” and that he was requesting the Court “to give me some more time”, and the Court took that as an adjournment application, which EDO19 confirmed it was (“Further Adjournment Application”): Transcript, 15 August 2023, pp 2-3.
The Minister opposed the Further Adjournment Application, submitting that: Transcript, 15 August 2023, p 3:
(a)the Court had made it clear that the 15 August 2023 hearing would proceed whether or not EDO19 had a lawyer;
(b)at the June 2023 hearing EDO19 had said something “very similar” about needing more time and that he had spoken to two or three lawyers since April 2023 but could not specify their names or the firms of the lawyers concerned; and
(c)the matter had been on foot since October 2019 and had been adjourned once already, and that given the lengthy history of the matter and lack of evidence that EDO19 had spoken to any lawyers, the adjournment was opposed.
In response EDO19 said that he requested “a few more months – like four months or something” and that he had spoken to many lawyers and all “my lawyers” have given the same response: Transcript, 15 August 2023, p 3.
The Court refused the Further Adjournment Application on the basis that:
(a)EDO19 had been told at the adjourned 6 June 2023 hearing that the matter would proceed at the 15 August 2023 hearing, whether or not he had legal representation;
(b)the Extension of Time Application had been on foot for several years, and had been adjourned previously to allow EDO19 to obtain legal advice or representation for the purposes of the 15 August 2023 hearing,
and that in those circumstances the Court was not prepared to further adjourn the matter: Transcript, 15 August 2023, p 4.
EXTENSION OF TIME APPLICATION
Material filed in support of the Extension of Time Application
EDO19 lodged the Extension of Time Application and an affidavit sworn by him on 23 October 2019 (“EDO19’s Affidavit”). In support of the Extension of Time Application, the following ground is raised (without alteration):
I was suffering depression and Anxiety.
Due to my depression and Anxiety I didn’t update my address with Immigration when I was supposed to. So the decision From them went to my previous address so the application ran out of time.
In EDO19’s Affidavit, EDO19:
(a)says at [2] that:
I was suffering depression and anxiety need bit more time …
(b)annexes a medical certificate dated 19 October 2019 which relevantly reads:
To Whom It May Concern
[EDO19], is a patient of mine. I noted that he has been suffering from the symptoms of severe depression and anxiety for last six months.
I commenced him on antidepressant and he is currently waiting to see a clinical psychologist.
Please do not hesitate to contact me if you have any query on this matter.
EDO19 did not file or serve any amended originating application, further affidavits or an outline of submissions in relation to the Extension of Time Application pursuant to the March 2023 Orders.
Following the refusal of the Further Adjournment Application at the 6 June 2023 hearing EDO19 was invited to make further submissions orally notwithstanding the failure to file submissions in accordance with the Court’s March 2023 Orders, or following the adjournment granted at the 6 June 2023 hearing. At the 15 August 2023 hearing the following exchange occurred with respect to the explanation for the delay:
HIS HONOUR: All right. I’m trying to endeavour what the reason for the delay in filing the application was prior to the application being filed in October 2019. What was the reason for the time it took to file that application in October 2019? Not since. Up until October 2019.
THE INTERPRETER [EDO19]: That’s my mistake, your Honour, that I did not apply in October 2019.
(Transcript, 15 August 2023, p 4)
EDO19’s submissions were otherwise necessarily limited by his asserted inability to deal with the matter himself, but to the extent that submissions were made they are dealt with below.
Law and principles to be applied to the Extension of Time Application
Section 477(1) of the Migration Act provides that an application for judicial review of a decision of the Authority must be made within 35 days of the decision. Section 477(2) of the Migration Act provides that:
(2)The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
In Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819; (2022) 403 ALR 604 (“Katoa”) the High Court was dealing with a case in which the plaintiff sought an extension of time under s 477A(2) of the Migration Act (which is not materially different to s 477(2) of the Migration Act save that it applies to extension of time applications in the Federal Court) in which to apply to the Federal Court for judicial review of the cancellation of a visa on character grounds which had been refused in circumstances where the Federal Court was not satisfied that the proposed substantive judicial review application had any merit. It was contended that the Federal Court went further than merely assessing the prospects of success and undertook a more complete review of the merits than was necessary for the purposes of an extension of time application. In Katoa the High Court dismissed the plaintiff’s application, finding that it was permissible to assess the merits of the substantive application in the more detailed manner undertaken by the Federal Court: at [20] per Kiefel CJ, Gageler, Keane and Gleeson JJ and [65] per Gordon, Edelman and Steward JJ. The majority plurality also observed that in determining what was necessary in the interests of the administration of justice, that it will often be appropriate to assess the merits of the proposed grounds of review at a reasonably impressionistic level, but there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment, and that if, for example, the delay is lengthy and unexplained, an applicant may be required to show that their case is strong or even “exceptional”: at [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ (and see also as to need for an “exceptional” case: Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) at [13] (see too at [16]) per McHugh J, citing Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458; (1990) 93 ALR 479; ALJR at 459 per McHugh J). In Katoa at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ the majority plurality said that (footnotes omitted):
On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time “is necessary in the interests of the administration of justice”. Other than the “interests of the administration of justice”, there are no mandatory relevant considerations, whether express or to be implied from the “subject-matter, scope and purpose” of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
In Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28] per Lucev FM and WZANW v Minister for Immigration & Anor [2009] FMCA 1075 at [25] per Lucev FM the then Federal Magistrates Court said that because of the meaning of “administration” the interests of the administration of justice included “management”, and that in assessing “the interests of the administration of justice” consideration must therefore be given to “the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court”. That reasoning was adopted by the Federal Court in McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [25] per McKerracher J in the context of the use of the same phrase in s 477A(2) of the Migration Act.
Length of the delay
Pursuant to s 477(1) of the Migration Act EDO 19 was required to file any application for judicial review of the Authority Decision by 1 July 2019. The Extension of Time Application was not filed until 23 October 2019, a delay of 114 days.
A delay of 74 days was described as “substantial” in WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14] per Judge Lucev. In Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 231 at [41] per Judge Mansini a delay of 76 days was described as “considerable”. In BRJ16 v Minister for Immigration & Anor [2018] FCCA 2929 at [11] per Judge Howard a delay of 129 days was described as “not insignificant”. In all these cases the extension of time application was dismissed.
A delay of 114 days is a substantial delay and weighs significantly against an extension of time being granted.
Explanation for the delay
EDO19’s explanation for the delay is set out in the ground to the Extension of Time Application and the paragraph from EDO19’s Affidavit set out at [32] and [33] above.
It is well-established that medical evidence in support of an adjournment of a listed hearing, must explain the effect of any alleged medical issues on the capacity of the applicant for the adjournment to deal with or engage in proceedings before the Court: see, for example, NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [5]-[6] per Lindgren J; CUS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 293; (2022) 369 FLR 305 at [40] per Judge Lucev.
In dealing with an application to set another hearing date from that scheduled due to a medical condition the High Court in Gill v Minister for Immigration and Border Protection & Anor [2018] HCATrans 199 at lines 58-64 per Nettle J observed that:
The certificate is of a type which these days one sees all too often in applications of this kind. By means of its Delphic drafting, it purports to cloak an application for adjournment with the mantle of medical respectability while preventing any examination or objective assessment of the illness claimed to warrant special consideration and indulgence. For that reason, quite apart from the fact that it is not on oath, I give it no weight.
In Zubair v Minister for Immigration and Border Protection [2017] FCCA 2905 (“Zubair”) at [7] per Judge Lucev this Court (then the Federal Circuit Court) found that:
In relation to the medical certificate, there are judgments of the Federal Court and this Court that establish that a person alleging a medical condition and seeking to rely upon that medical condition for the grant of an indulgence, such as an adjournment, needs to provide sworn evidence to the Court concerning the medical condition: see NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559 at [5]- [10] per Lindgren J (“NAKX”); Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]- [49] per Collier, Griffiths and Mortimer JJ; BYF15 v Minister for Immigration and Border Protection [2016] FCA 774 at [35] per Perry J; Ellis v Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge (No.2) [2017] FCCA 190 at [35] per Judge Lucev; and the authority handed up today by counsel for the Minister, Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2] per Pagone J, citing liberally from NAKX. Those authorities also make the point that any medical certificate ought to say that the person, the subject of the medical certificate, is unfit and why they are unfit and, in particular, why they are unfit to attend any required Court attendance.
More recently in AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815 (“AAL17”) the Federal Court had before it a request, made the afternoon before the listing date, to adjourn the hearing of an appeal, on the basis of a medical certificate which said that the doctor concerned had examined the applicant for adjournment “who in my opinion is suffering from medical conditions and will be unfit” for a three day period: AAL17 at [10] per Lee J. As to the medical certificate the Federal Court in AAL17 at [19] per Lee J observed as follows:
19I have set out above the adjournment request. In my view the medical certificate provided was wholly deficient in apprising the Court of the circumstances which would lead the Court to conclude that the appellant has an acceptable explanation for not appearing this morning. As I explained in a similar context in SZWBK v Minister for Immigration and Border Protection [2017] FCA 1020 (at [15]), a case where the appellant sought an adjournment due to back pains:
The medical certificates do not purport to address the critical question of whether, and if so why, the relevant “medical condition” would prevent the first appellant from travelling to Court and participating effectively in the hearing. Like the position in NAKX [v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559] and Singh [v Minister for Immigration and Border Protection [2016] FCA 108], I do not accept, on the basis of the material provided, that the Delphically described “medical condition” would have prevented the first appellant from travelling to Court and participating effectively in the hearing. Even if I was wrong about this, there is no explanation as to why the first appellant could not have made the necessary arrangements to attend the hearing by telephone … I agree, with respect, with what Pagone J said in Singh (at [2]), namely that:
… what needs to be provided for a medical certificate to be meaningful is material that establishes why it is or how it is that the appellant suffering from a medical condition would be unfit for participation at a court hearing
Generally, “the longer the delay the more persuasive the explanation needs to be”: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] per Wigney J; see also Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185; FCR at 195 per Lockhart, Sheppard and Burchett JJ.
In this case the Medical Certificate was slightly more informative than some of the medical certificates referred to in the cases mentioned above, because it:
(a)indicates that EDO19 was a patient of the doctor who completed the Medical Certificate;
(b)specifies the medical condition or conditions EDO19 was said to be suffering from, namely, “symptoms of severe depression and anxiety”;
(c)indicates the time frame - “the last six months” (the Medical Certificate was dated 19 October 2019) - over which EDO19 had been suffering from severe depression and anxiety; and
(d)indicates that EDO19 had been “commenced … on [an] antidepressant”, although it does not say from what date that occurred.
The Medical Certificate does not, however, explain how it was that the severe depression and anxiety rendered EDO19 incapable of filing the Extension of Time Application between April and October 2019, or taking, or arranging for any steps to be taken, in relation thereto. There is nothing in the Medical Certificate which says that EDO19 was unfit to do anything, and certainly no indication therein as to how EDO19’s severe depression and anxiety would have actually rendered him unfit to prepare and file the Extension of Time Application, or to give instructions in relation thereto. EDO19’s Affidavit does not actually address the circumstances of the failure to file the Extension of Time Application, but rather EDO19’s failure to update his address details with the Authority, again, he alleges, on the basis of his severe depression and anxiety. In that regard the Court notes that the Authority Decision was handed down on 27 May 2019: CB 167, that is, within the six month April to October 2019 window referred to in the Medical Certificate during which EDO19 is said to have been suffering from severe depression and anxiety. But, apart from the assertion that EDO19 “need[ed] a] bit more time”, nothing was put by EDO19 as to why the effects of the severe depression and anxiety rendered him physically or mentally incapable of preparing, or organising the preparation of, an application for judicial review.
In circumstances where:
(a)there is no real explanation as to how EDO19’s severe depression and anxiety affected his capacity to prepare, or organise the preparation of, an application for judicial review; and
(b)when asked at the 15 August 2023 hearing as to the explanation for the delay, EDO19 did not rely on his severe depression and anxiety, but simply submitted that it was “my mistake”: Transcript, 15 August 2023, p 4,
the Court is not, on balance, satisfied that there is either a persuasive or a satisfactory explanation for the delay, and that conclusion weighs against an extension of time being granted.
Prejudice
The Minister submitted that there was no prejudice, save for the lack of finality in decision making, if EDO19 is granted an extension of time.
The Court notes that mere absence of prejudice does not justify an extension of time: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315, FCR at 348-349 per Wilcox J. There may, however, be some prejudice to the Minister where the Minister loses a vested right to retain the benefit of the Authority Decision on the expiry of the time limitation under s 477(1) of the Migration Act: Marks at [17] per McHugh J. As the Court (then the Federal Circuit Court) observed in WZAWB v Minister for Immigration and Border Protection [2016] FCCA 1345; (2016) 309 FLR 398 at [109] per Judge Lucev:
There must be some prejudice arising from the fact that this is a case in respect of which the Minister might rightfully have thought that the litigation was at an end by reason of the extraordinary length of the delay in making the application. In traditional terms, the Minister is prejudiced by reason of the fact that he was entitled to consider that the fruits of the litigation were his. In those circumstances, there is additional prejudice by reason of the costs incurred as a consequence of this application.
More recently in WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [41]-[44] per Derrington J the Federal Court observed that:
41There exists a clear public interest in the prompt disposition of administrative matters and, in particular, of allegations that officers of the Commonwealth have acted in excess of their jurisdiction: MZABO v Minister for Immigration and Border Protection [2016] FCA 980 [5]. In Ex parte Marks [(2000) 75 ALJR 470], McHugh J said in relation to proceedings in which prerogative writs were sought (at 474 [15]):
“[T]he public interest requires that there be an end to litigation about the efficacy of such acts or decisions.”
42More specifically, the Minister has a legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas: Sun v Minister for Immigration and Border Protection (2016) 243 FCR 2020 [89]; Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71 [62].
43In the circumstances of this case where the delay is extraordinary and not adequately unexplained, it would set at naught the Minister's legitimate concerns in the proper disposition of applications under the Act if an extension of time were granted. In the case of decisions made under the Act in respect of which the time for seeking review has long passed, the granting an extension of time would have the consequence that the right to seek review may be resurrected at any later time thereby necessitating a diversion of resources in circumstances where those administrative officers who were familiar with the matter may have moved on. It can be assumed that the limitation of time in which to make an application for review of the Tribunal's decision has been set by the legislature with the intent that it generally balances the interests of applicants in seeking review with the interests of the Minister and his Department in finalising the decision-making obligations under the Act. Although s 477A(2) enables the Court to extend time, the general temporal limitation cannot be entirely ignored or treated as merely provisional.
44The prejudice which the Minister would suffer in this case in relation to the orderly and proper administration of the Act is a further factor which weighs heavily in favour of rejecting the application for an extension of time.
Having regard to the Minister’s submission and the authorities, the Court is satisfied that if the Extension of Time Application were to be granted there would be some, albeit comparatively minimal, prejudice to the Minister, in circumstances where the Minister was entitled to believe that this litigation was complete and where some additional costs would likely be incurred as a consequence of a final hearing. Consequently the Court considers that this factor weighs, albeit slightly, against granting the Extension of Time Application.
Merits of the Proposed Judicial Review Application
Background to the Proposed Judicial Review Application
By way of background to an assessment of the possible substantive merits of the Proposed Judicial Review Application the Court notes that:
(a)EDO19 is a citizen of Sri Lanka who entered Australia on 19 July 2013 as an unauthorised maritime arrival: CB 62;
(b)EDO19 applied for a SHE Visa: CB 42-96, on 27 February 2017. EDO19’s SHE Visa application, was accompanied by a statement in which EDO19 claimed to fear harm:
(i)from the Sri Lankan authorities and the Sri Lankan Criminal Investigation Department (“CID”) based on his and his brothers’ association with the Liberation Tigers of Tamil Eelam (“LTTE”);
(ii)because of his status as a young Tamil male from the north of Sri Lanka: CB 81-85; and
(iii)on return to Sri Lanka because he would be a failed asylum seeker returning after a lengthy stay overseas: CB 85;
(c)on 13 March 2017 the Department advised EDO19 that the Minister had exercised the power under s 46A(2) of the Migration Act to lift the bar in s 46A(1) of the Migration Act, and that his SHE Visa application made on 27 February 2017 was valid: CB 97-98;
(d)on 9 November 2018 EDO19 attended an interview with the Delegate to discuss his protection claims: CB 106-107;
(e)on 12 April 2019 the Delegate’s Decision was to refuse to grant EDO19 a SHE Visa: CB 138-152;
(f)the matter was subsequently referred to the Authority pursuant to s 473CA of the Migration Act: CB 157-158; and
(g)on 27 May 2019 the Authority Decision affirmed the Delegate’s Decision: CB 167-177.
Authority Decision
In the Authority Decision the Authority:
(a)said it had had regard to the material referred to it by the Secretary under s 473CB of the Migration Act, with no new information obtained or received: CB 168 at [3];
(b)accepted many of EDO19’s claims, including that: CB 170 at [8]:
(i)his second oldest brother was a LTTE combatant who was shot and left the LTTE;
(ii)his third oldest brother was a LTTE combatant who was killed in 1999;
(iii)his fourth oldest brother was conscripted by the LTTE but was only involved for one month;
(iv)his younger brother was conscripted by the LTTE in 2008 but ran away three days later;
(v)he worked at a restaurant owned by the LTTE from 2006 to 2008;
(vi)he lived in government internal displacement camps from 2009 to 2012; and
(vii)two of his older brothers were detained for three years after the conflict ended in 2009 and were then released;
(c)found at CB 170-171 at [9] that EDO19’s credibility had been damaged because:
(i)he had made inconsistent claims about the location of the CID office where he said he was taken to and beaten, and the Authority noted that the distances between the claimed CID offices was 250km;
(ii)at his SHE Visa application interview, EDO19 claimed he was detained by the CID for 14 days, but he made no mention of this in his SHE Visa application;
(iii)he failed to produce evidence of any bail or court documents relating to charges that he claimed were made against him by the CID, despite having told the Delegate that he had them “back home” and would need 10-15 days to provide them; and
(iv)the Authority found his claim that in 2012-2013 the CID suspected him of being a LTTE combatant and mistreated him was not credible and implausible, in circumstances where his brothers, who were claimed to have had a much higher level of involvement with the LTTE than EDO19, had not experienced any issues with the CID after their release from detention;
(d)based on the abovementioned “significant concerns” about EDO19’s credibility, the Authority at CB 171-172 at [10] rejected EDO19’s claims that:
(i)he tried to leave Sri Lanka illegally by boat on two occasions in 2012 but was unsuccessful and faced charges as a result;
(ii)he moved to Trincomalee and Hambantota in 2012 as a preparatory step to fleeing Sri Lanka;
(iii)the CID detained him for 14 days after his second unsuccessful attempt to depart Sri Lanka illegally;
(iv)a judge had ruled that he had to pay 100,000 rupees and to report to the CID head office once a month;
(v)he had complied with those reporting obligations on two occasions but stopped because the travel costs were too expensive;
(vi)the CID responded to his non-compliance with the reporting obligations by coming to his house, and detaining him for two days during which he was interrogated and physically abused in an attempt to procure an admission from him of his LTTE involvement;
(vii)a subsequent tipoff from an unknown third party reignited the CID’s interest in him which led to him being questioned for one and a half hours and the resumption of reporting obligations;
(viii)his mother had told him that the CID had searched for him in 2014 and 2015 because of his continued non-compliance with his reporting obligations; and
(ix)he was of any adverse interest to the Sri Lankan authorities for any reason including his or his family’s actual or imputed links to the LTTE and his claimed illegal departure attempts;
(e)recorded that it had taken into account relevant country information concerning the Sri Lankan government’s current treatment of Tamils and did not accept that EDO19’s younger brother was seeking to leave Sri Lanka because the CID were shooting people and “white van” abductions were occurring: CB 172 at [11]-[14];
(f)recorded that EDO19 had not claimed to have been involved in any post-conflict Tamil separatist activities in Sri Lanka or Australia and that he did not have a significant role in the LTTE. It therefore found that there was not a real chance that he would be imputed with a pro-LTTE or pro-Tamil separatist opinion upon his return to Sri Lanka: CB 173 at [15]. It also found that the low risk of societal or official discrimination on the basis of his ethnicity he might experience did not rise to a real chance that he would face serious harm at the hands of the Sri Lankan authorities or anyone else: CB 173 at [16];
(g)accepted that EDO19 departed Sri Lanka illegally: CB 173 at [17], but after considering country information: CB 174 at [18], [20]-[23] and [27], accepted that the consequences of EDO19’s illegal departure under the Immigration and Emigrants Act 1948 (Sri Lanka) (“I & E Act”) may be monitoring by the Sri Lankan authorities and the need for EDO19 to establish himself in a community, a brief period of detention at the airport, and the imposition of a fine, but it did not accept that these would constitute serious harm: CB 174 at [19] and 175 at [24]-[26]. It also concluded that these consequences under the I & E Act were the result of a law of general application that was not applied in a discriminatory manner: CB 175 at [27]; and
(h)concluded, after a cumulative assessment of the potential consequences EDO19 might face on his return to Sri Lanka and his overall profile, that he did not meet the definition of a refugee in s 5H(1) of the Migration Act and therefore did not meet s 36(2)(a) of the Migration Act: CB 175 at [28]-[30], and based on the same findings of fact, found that EDO19 did not meet s 36(2)(aa) of the Migration Act as there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real chance he would suffer significant harm: CB 176 at [31]-[36].
Grounds of Proposed Judicial Review Application and Orders sought
The grounds of the Proposed Judicial Review Application are as follows (reproduced unaltered):
1.The decision maker did not properly apply the law in relation to the applicant’s legal rights and the obligations of the decision maker under the Act in particular in deciding that there is no risk of suffering harm and particular “significant harm” under s.36 (2AO of the Migration Act or at all.
2.The dicision did not or properly consider the likelihood of acts by any parties or at all in considering the risks and likelihood harm to the Applicant if required to leave Australia and relied on limited information in making its decision.
3.The decision did not properly consider the welfare and safety of the Applicant and as such was unsafe at law.
In addition to seeking an order quashing the Authority Decision, EDO19 also sought relief by way of orders as follows (reproduced unaltered):
1.That the Applicant be granted a Protection visa
2.Such other order or orders that provide for the Applicant to remain in Australia
3.Such other order or orders which are appropriate in the interests and Protection of the Applicant
Whether sufficiently arguable merit to establish jurisdictional error in the Proposed Judicial Review Application
In relation to whether there is sufficiently arguable merit in the proposed grounds for the Proposed Judicial Review Application to proceed it is necessary to observe that there must be a sufficiently arguable case of jurisdictional error affecting the Authority Decision. For present purposes it suffices to observe that the Court may set aside the Authority Decision at final hearing if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 (“Plaintiff S157/2002”); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. Therefore, in order for the Extension of Time Application to be granted EDO19 must establish a sufficiently arguable merit case of material jurisdictional error in the Authority Decision.
Submissions on the merits of the Proposed Judicial Review Application
EDO19 did not file any written submissions. At the 15 August 2023 hearing EDO19 had little to say with respect to the merit of the Proposed Judicial Review Application beyond asserting that in Sri Lanka there were two major communities divided by religion, namely the Sinhalese and the Tamils, and that as a Tamil with different religious beliefs (to the Sinhalese) it was difficult to survive in Sri Lanka. Asked by the Court: Transcript, 15 August 2023 hearing, p 5, whether:
(a)there was sufficient arguable merit in the proposed grounds for the Proposed Judicial Review Application, EDO19 said that if he went back to Sri Lanka there were “a lot of dangers” to him because his “family was involved in the freedom fight”;
(b)broadly, as to what he said was “wrong” with the Authority Decision, EDO19 said he did not want to say anything about it; and
(c)the Authority Decision was affected by jurisdictional error, EDO19 requested more time to speak to a lawyer, and that he was unable to handle the matter on his own.
The Minister’s submissions were, in summary, as follows:
(a)the Court lacked jurisdiction to determine this matter because EDO19 had not sought a writ of mandamus or prohibition or an injunction against an officer of the Commonwealth;
(b)in relation to proposed ground 1 the Authority satisfied itself that there was not a real risk that EDO19 would suffer significant harm: CB 176 at [33]-[35], and the Authority was entitled to use its factual findings in relation to the refugee criterion in s 36(2)(a) of the Migration Act to support a conclusion that EDO19 did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act;
(c)in relation to proposed ground 2 that the Authority relied upon appropriate country information to conclude that EDO19 was not of any interest to the Sri Lanka authorities, and it conducted its review on the basis of the information before the Delegate, as it was required to do, and gave the country information such weight as it determined was necessary, which was a matter for it to determine in circumstances where the authority was not required to put particulars of recent country information to EDO19;
(d)in relation to proposed ground 3 the Authority identified and applied the applicable legislative criteria under s 36(2)(a) and (aa) of the Migration Act to the claims made by EDO19 and had regard to relevant country information; and
(e)the Extension of Time Application should not be granted because EDO19:
(i)has not established a satisfactory explanation for the delay; and
(ii)has not established that the grounds of the Proposed Judicial Review Application have sufficiently arguable merit.
Analysis of the merits of the Proposed Judicial Review Application
The Proposed Judicial Review Application seeks relief by way of an order that the Authority Decision be quashed. It does not, however, seek relief by way of a writ of mandamus or prohibition, or an injunction, against an officer of the Commonwealth.
Under s 476 of the Migration Act this Court’s jurisdiction in relation to migration decisions is the same as the original jurisdiction of the High Court under s 75(v) of the Constitution. That is, the Court has jurisdiction to hear matters in relation to a migration decision where a writ of mandamus or prohibition, or an injunction, is sought against an officer of the Commonwealth.
A writ of certiorari to quash a decision is a remedy ancillary to the constitutional writs of mandamus and prohibition, and cannot be sought or granted as a sole remedy in respect of alleged jurisdictional error under s 476(1) of the Migration Act: Plaintiff S157/2002 at [80]-[81] and [83] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, although it may be, and almost invariably is, granted as an ancillary remedy to give effect to a constitutional writ of prohibition in migration judicial review proceedings in this Court: Plaintiff S157/2002 at [80]-[81] and [83] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; but might also potentially, if or where appropriate, be ordered as a sole remedy where constitutional writs of mandamus and prohibition have been sought but not granted: Mokhlis v Minister for Home Affairs [2020] HCA 30; (2020) 94 ALJR 843; (2020) 382 ALR 1 at [14] per Edelman J; FRA18 v Minister for Home Affairs & Anor [2019] FCCA 2287 at [15] per Judge Driver; Mannv Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 570 at [17]-[19] per Judge Lucev. The same rationale applies where an applicant seeks relief by way of a declaration, but fails to seek relief by way of an injunction: Plaintiff M61/2010E v Commonwealth of Australia & Ors [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244 at [8], [50]-[52] and [99]-[103] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; WZAQB v Minister for Immigration & Anor [2012] FMCA 688 at [28]-[33] per Lucev FM.
EDO19 had opportunities to amend the relief sought in the proposed grounds of the Proposed Judicial Review Application to include relief by way of constitutional writs of mandamus or prohibition, or by seeking an injunction of some kind, by reason of both the Registrar’s Orders (made in December 2019) and the Court’s March 2023 Orders, but on neither occasion did EDO19 file any amended Proposed Judicial Review Application. Nor did EDO19 take any action to deal with this issue following the filing of the Minister’s Submissions on 18 May 2023 (in which the Minister made the submission that the Court was without jurisdiction), or otherwise prior to the 6 June 2023 hearing. Further, EDO19 failed to do so in circumstances where lawyers were consulted concerning the Proposed Judicial Review Application after the Court’s making of the March 2023 Orders.
EDO19 has therefore not sought relief by way of the constitutional writs of mandamus of prohibition, or otherwise by way of injunction, as provided for by s 75(v) of the Constitution, and has therefore failed to properly invoke the Court’s jurisdiction under s 476(1) of the Migration Act. It follows, therefore, that the Proposed Judicial Review Application would be incompetent even if the Extension of Time Application were to be granted. Although this finding is sufficient to dismiss the Extension of Time Application, for reasons which follow, the proposed grounds of the Proposed Judicial Review Application do not have sufficient arguable merit to warrant granting the Extension of Time Application in any event.
In relation to proposed ground 1 of the Proposed Judicial Review Application the Authority was tasked with determining whether, as a necessary and foreseeable consequence of EDO19 being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm. The correct test with respect to “real risk” and “significant harm” was set out in the Authority Decision at CB 176 at [31] and [32] respectively.
The Authority Decision indicates that the Authority considered the question of whether there was a “real risk” and found that it was not satisfied that there was a “real risk” that EDO19 would suffer significant harm:
(a)for any of the reasons claimed by EDO19, including:
(i)his status as a young Tamil male from the north of Sri Lanka;
(ii)his family members’ association with the LTTE and the Sri Lankan authorities; and
(iii)in the event of his return to Sri Lanka, his status as a failed asylum seeker and a person who had spent a significant amount of time in a country with a significant Tamil diaspora: CB 176 at [33];
(b)the Authority did not accept that EDO19 would face treatment upon return to Sri Lanka under the I & E Act which would amount to significant harm: CB 176 at [34]; and
(c)the Authority found that EDO19’s treatment in Sri Lanka before his illegal departure was treatment faced by the population of Sri Lanka generally, and not him personally, and there was no evidence to indicate that EDO19 would suffer significant harm as defined in s 36(2A) of the Migration Act: CB 176-177 at [35].
The Court notes that there is no error in the Authority determining that EDO19 did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act by reference to the previous factual findings that EDO19 did not meet the refugee criterion in s 36(2)(a) of the Migration Act, such an approach being entirely orthodox: DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1; (2021) 95 ALJR 352; (2021) 388 ALR 363 at [27] per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ; DBE19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 779 at [44] per Perry J; BCX16 v Minister for Immigration and Border Protection [2019] FCA 465; (2019) 164 ALD 313 at [23] per Charlesworth J.
In the above circumstances, the Authority Decision EDO19 is not able to establish a sufficiently arguable case of jurisdictional error on the basis of proposed ground 1.
In relation to proposed ground 2 of the Proposed Judicial Review Application, it falls into two parts whereby EDO19 alleges that the Authority:
(a)did not properly consider the “likelihood of acts by any parties or at all in considering the risks and likelihood harm to the Applicant if required to leave Australia” (reproduced unaltered); and
(b)that it “relied on limited information in making its decision”.
Assuming that the risks and harm to which EDO19 asserts that he might be exposed if required to leave Australia were risks and harm upon return to Sri Lanka at the hands of the Sri Lankan authorities, including the CID, the assertion that the Authority did not properly consider these matters cannot be made out. The Authority Decision contains clear and detailed reasons for the conclusions that EDO19 was not, and never had been, of any interest to the Sri Lanka authorities or the CID, a conclusion largely based on the Authority’s adverse findings in relation to EDO19’s credibility: CB 170-171[173] at [8]-[16]. In making its assessment in relation to the risk to which EDO19 might be exposed and the harm which he might suffer upon return to Sri Lanka the Authority also considered country information and the improvement for Tamils in Sri Lanka which it said that country information revealed, and also found that EDO19 had not claimed to have been involved in any post-conflict Tamil separatist activities in Sri Lanka or Australia, and that his LTTE involvement was low-level and insignificant: CB 172-173 at [11]-[15]. The Court notes that the country information relied upon in the Authority Decision was both contemporaneous and reasonably likely to be reliable, including as it did the Department of Foreign Affairs and Trade Country Information Report on Sri Lanka dated 23 May 2018 and the United Kingdom Home Office Country Policy and Information Note on Tamil separatism in Sri Lanka dated from June 2017: CB 172 at [11]-[12] fnn 3 and 5.
The complaint that the Authority relied on limited information in making the Authority Decision belies the fact that the Authority was required to conduct a review on the papers, and in that regard was required to review the Delegate’s Decision by considering the review material provided to it by the Secretary of the Department: Migration Act, s 473CB, and save as provided by s 473DD of the Migration Act, without accepting or requesting new information and without interviewing EDO19: Migration Act, s473DB(1). The weight to be placed upon the information before the Authority, and the conclusions to be drawn from it as matters of fact, were matters for the Authority: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. In relation to country information the weight to be placed upon it was, generally speaking, a matter for the Authority to determine: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13] per Gray J, Tamberlin and Lander JJ; CXS18 v Minister for Home Affairs [2020] FCAFC 18 at [37] per McKerracher, White and Colvin JJ.
The Authority considered the country information such that it determined that there was not a real risk of significant harm to EDO19 were he to be returned to Sri Lanka, and in so determining it considered the relevant country information, as well as information particular to EDO19, to draw conclusions that EDO19 did not require protection as a refugee or under the complementary protection provisions of the Migration Act. The Authority Decision was one, which, in the circumstances, was open to the Authority on the evidence before it, for the reasons that it gave, and it cannot be said that no other rational or logical decision-maker could not have drawn the same conclusions: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248. In the circumstances, the Authority Decision is not attended by sufficient doubt as to enable EDO19 to establish a sufficiently arguable case of jurisdictional error on the basis of proposed ground 2.
In relation to proposed ground 3 of the Proposed Judicial Review Application the assertion that the Authority failed to consider the “safety and welfare” of EDO19 takes the matter no further than the assertions made in relation to proposed ground 2. As set out above in relation to proposed ground 2 the Authority considered the question of whether or not there was a real risk of significant harm for the purposes of the refugee criterion, and based upon the same factual findings, found that EDO19 was not owed complementary protection (in addition to not being owed refugee protection), and in so doing the Authority had regard to the information before it, including EDO19’s claims and country information, and used that to determine whether or not EDO19 met the relevant legislative criteria under s 36(2)(a) and (aa) of the Migration Act for the grant of a SHE Visa. The findings that the Authority made, particularly for the purposes of complementary protection, were that there was not a real chance of significant harm to EDO19 upon return to Sri Lanka, and in so doing the Authority must be considered to have made a general finding which encompasses specific consideration of EDO19’s safety and welfare upon return to Sri Lanka: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ.
In the above circumstances, the Court is of the view that proposed ground 3 does not have sufficiently arguable merit to warrant a grant of the Extension of Time Application.
The Court has also considered whether, considered cumulatively, proposed grounds 1, 2 and 3 might establish a sufficiently arguable case of material jurisdictional error in the Authority Decision to warrant granting the Extension of Time Application, but, as might be evident from the Court’s consideration of the three grounds, none of them have, in reality, any prospect of success, and cumulative consideration of them does not therefore establish a sufficiently arguable case of material jurisdictional error in the Authority Decision to warrant granting the Extension of Time Application.
For the reasons set out above it follows that there is not sufficiently arguable merit in the Proposed Judicial Review Application to warrant granting an extension of time.
Case management issues
The overarching purpose of the civil practice and procedure provisions in s 190 of the FCFCA Act includes in s 190(2)(b), (c) and (d) the following objectives:
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
To grant the Extension of Time Application in circumstances where it is not apparent that there is a merit case, or if there is, it is a very weak merit case, in the proposed grounds in relation to the establishment of material jurisdictional error in the Authority Decision, would run contrary to the case management considerations embodied in the objectives of the overarching purpose of the civil practice and procedure provisions. This is particularly so where it is well-known that this Court has more than 15,000 migration judicial review applications not yet allocated to a judge for hearing, and with the continuing number of applications brought to this Court, no realistic prospect of clearing that backlog of cases for many years. To extend time for a case without sufficiently arguable merit is plainly an inefficient use of the Court’ judicial resources, particularly in circumstances where there is a backlog of cases of the size referred to above, and would not assist in the efficient disposal of the Court’s overall caseload. Nor would it contribute to the timely disposal of this matter, given that if an extension of time were to be granted, the matter would be unlikely to be listed for hearing until at least mid-way through 2024.
In considering issues of case management the Court must also take into account the fact that an extension of time in this matter will have an effect on other litigation which would not be able to be listed as a consequence of this matter having to be heard, and thereby might cause delay in the hearing of other matters (whether they be migration judicial review matters or other matters within this Court’s jurisdiction).
In the above circumstances, case management considerations weigh against the grant of an extension of time.
CONCLUSION AND ORDERS
The Court has concluded that, by reason of:
(a)the length of the delay;
(b)the failure to provide an adequate explanation for the delay,
(c)some slight prejudice to the Minister;
(d)a lack of sufficiently arguable merit in the Proposed Judicial Review Application; and
(e)case management considerations,
it is not in the interests of the administration of justice to extend time to file the Proposed Judicial Review Application. The Extension of Time Application must therefore be dismissed. There will be an order accordingly.
The Court will hear parties as to costs.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 14 September 2023
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