Ekt20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 63
•10 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 63
File number(s): MLG 3646 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 10 February 2022 Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Lebanon – unauthorised maritime arrival – Subclass 790 Safe Haven Enterprise visa – whether arguable jurisdictional error in proposed grounds of review.
PRACTICE AND PROCEDURE – Extension of time – factors – where very substantial delay – whether explanation for delay satisfactory – whether prejudice – whether proposed grounds of review have merit.
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s.8(2)
Migration Act 1958 (Cth), Pt.7AA, ss.5H, 5J, 36, 473DC, 473HB, 473HD, 474, 476, 477Cases cited: AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1
BZABK v Minister for Immigration and Citizenship [2012] FCA 774; (2012) 205 FCR 83
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475; (2020) 382 ALR 246
Djokovic vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
FHX20 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458; (1990) 93 ALR 479
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
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Ministerfor Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
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
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
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
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tran v Minister for Immigration and Border Protection [2014] FCA 533
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
WZAUU v Minister for Immigration and Border Protection [2019] FCCA 2214
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
WZAWB v Minister for Immigration and Border Protection [2016] FCCA 1345; (2016) 309 FLR 398Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 24 January 2022 Place: Perth Applicant: Appeared in person with the assistance of an interpreter Counsel for the First Respondent: Ms B Roscoe Solicitor for the First Respondent: Mils Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3646 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EKT20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
10 FEBRUARY 2022
THE COURT ORDERS THAT:
1.
The applicant’s application under s 477(2) of the Migration Act 1958 (Cth) filed on
12 October 2020 for an extension of time in which to file an application under s 476 of the Migration Act 1958 (Cth) 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
Before the Court is an application under s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”) by the applicant, EKT20, filed 12 October 2020 for an order for an extension of time (“Extension of Time Application”) within which to make an application pursuant to s 476 of the Migration Act for judicial review (“Proposed Judicial Review Application”) of a decision of the Immigration Assessment Authority (“Authority” and “Authority Decision” respectively) of 23 August 2019 to affirm a decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) to refuse EKT20 a Subclass 790 Safe Haven Enterprise visa (“SHE Visa”).
EKT20 filed an affidavit signed by him on 2 October 2020 (“EKT20 Affidavit”) in support of the Extension of Time Application. The EKT20 Affidavit was unsworn due to certain COVID-19 restrictions, but the Minister did not object to the Court treating it as if it were sworn. Relevant parts of the EKT20 Affidavit are referred to and set out at [19(a)-(b)] below.
The Court Book (“CB”) was marked as Exhibit 1.
BACKGROUND
The background to the Extension of Time Application is as follows:
(a)EKT20 is a 28 year old Sunni Muslim citizen of Lebanon: CB 4;
(b)
EKT20 arrived in Australia on 13 June 2013 as an unauthorised maritime arrival:
CB 48;
(c)EKT20 claimed:
(i)to have left Lebanon due to the war in Syria;
(ii)to have never had a partner; and
(iii)that he had a brother, “M”, who had died of cancer as a child: CB 2-19;
(d)on 9 June 2017 the then Department of Immigration and Border Protection, now the Department of Home Affairs (“Department”), wrote to EKT20 (“June 2017 Department Letter”) at a suburban Melbourne residential address (“Residential Address”) and advised him that the Minister had imposed a deadline of 1 October 2017 for the filing of SHE Visa applications: CB 25-26;
(e)on 5 September 2017 Refugee Legal forwarded to the Department a SHE Visa application on behalf of EKT20, and in the covering letter (“Refugee Legal September 2017 Letter”) Refugee Legal said they had “assisted” EKT20 to prepare the SHE Visa application, but noted that they were “not providing ongoing assistance to the applicant and all correspondence is to be forwarded to the address for the applicant detailed in the [SHE Visa] application”: CB 29, that address being the Residential Address;
(f)EKT20’s SHE Visa application was formally lodged on 13 September 2017: CB 29-80;
(g)as part of attachments to the SHE Visa application, in a statutory declaration at CB 71-74 (“Statutory Declaration”) and personal statement at CB 77-79 (“Personal Statement”), EKT20 claimed to have left Lebanon after having a pre-marital sexual relationship with his girlfriend of three years, whom he claimed was a member of a prominent Lebanese family (“Prominent Family”): CB 77;
(h)EKT20 alleged that the Prominent Family had threatened to kill him and a bounty was offered to disclose his whereabouts: CB 146, Authority Decision at [15];
(i)in the SHE Visa application information EKT20 now claimed that his brother M was killed in a shooting on the family home, and that he feared he or members of his family would be killed by the Prominent Family if he returned to Lebanon: CB 78;
(j)EKT’s SHE Visa application also indicated that EKT20 had a child who was an Australian citizen: CB 63, and on 25 October 2017 the Department wrote to EKT20 requesting evidence of Australian citizenship of his child: CB 90, a letter to which no response was received: CB 145, Authority Decision at [11];
(k)on 20 September 2017 the Department wrote to EKT20 acknowledging receipt of a valid SHE Visa application (“SHE Visa Acknowledgment Letter”): CB 81-89;
(l)on 24 June 2019 the Department wrote to EKT20 to invite him to attend an interview with the Delegate scheduled for 17 July 2019: CB 91-100 (“Delegate’s Invitation Letter” and “Delegate’s Interview” respectively), and sent the Delegate’s Invitation Letter to the Residential Address: CB 44;
(m)the Department attempted to contact EKT20 by mobile telephone on 16 July 2019 but the number (that provided in the SHE Visa application) was not connected: CB 106;
(n)EKT20 failed to attend the Delegate’s Interview on 17 July 2019: CB 106;
(o)the Department again attempted to contact EKT20 on 23 July 2019 but the mobile number EKT20 had provided remained disconnected: CB 106;
(p)
on 29 July 2019 the Delegate’s Decision was to refuse to grant EKT20 a SHE Visa:
CB 101-114;(q)on 1 August 2019 the matter was referred to the Authority for review: CB 115;
(r)on 2 August 2019 the Authority wrote to EKT20 at the Residential Address acknowledging the referral (“Authority Referral Acknowledgment Letter”) and informing EKT20 that he could provide a written submission to the Authority and, in exceptional circumstances, could also provide new information: CB 118;
(s)
on 15 August 2019 the Authority attempted to call EKT20 on the mobile telephone number provided in the SHE Visa application, but the number was disconnected:
CB 145, Authority Decision at [9];
(t)on 16 August 2019 the Authority received the Authority Referral Acknowledgment Letter marked “return to sender – no longer at address”: CB 125, following which the Authority attempted to contact EKT20 on an alternative mobile number recorded on the SHE Visa Acknowledgment Letter (at CB 85), but that number was also disconnected: CB 145, Authority Decision at [9];
(u)on 23 August 2019 the Authority Decision affirmed the Delegate’s Decision to refuse EKT20 a SHE Visa: CB 143-156, and sent a copy of the Authority Decision to EKT20 at the Residential Address: CB 140;
(v)on 26 August 2019 the Authority again tried to contact EKT20 on his two listed mobile numbers, but both were disconnected: CB 139;
(w)on 12 October 2020 EKT20 filed the Extension of Time Application in the Melbourne Registry of this Court (the then Federal Circuit Court of Australia, and the Court now prescribed by s 8(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) as the “Federal Circuit and Family Court of Australia (Division 2)”);
(x)on 30 November 2020 a Registrar of the Court made procedural orders (“Registrar’s Orders”), including an order that EKT20 file and serve any amended Proposed Judicial Review Application and written submissions 28 days before hearing, and that the Extension of Time Application, and if time be extended, the Proposed Judicial Review Application, be heard on a date to be advised;
(y)in May 2021 the matter was listed on 20 July 2021 for hearing of the Extension of Time Application (and the Proposed Judicial Review Application if the Extension of Time Application were to be granted) before a Judge in the Melbourne Registry of this Court;
(z)
on 8 July 2021, just 12 days before the hearing listed for 20 July 2021, EKT20 was transferred by the Department from the Melbourne Immigration Transit Accommodation (“MITA”) in Broadmeadows, a suburb of Melbourne, to the
Yongah Hill Immigration Detention Centre at Northam, approximately 100 kilometres east of the Perth CBD;
(aa)on 20 July 2021 a Judge in the Melbourne Registry of the Court made an order and note as follows:
THE COURT ORDERS THAT:
1. The matter be transferred to the Western Australia Registry of the Federal Circuit Court of Australia.
AND THE COURT NOTES THAT:
A. The Applicant was not able to attend Court face-to-face on this day due to being moved to Western Australia.
(bb)on 21 July 2021 the parties were sent a Notice of Relisting, relisting the matter before a Judge in the Perth Registry for 10.00am AWST/1.00pm AEDT Monday 24 January 2022; and
(cc)on 24 January 2022 EKT20 attended a hearing in the Perth Registry of the Court in person, with the assistance of an interpreter, and although EKT20 had not filed any amended Proposed Judicial Review Application, and had not complied with the Registrar’s Orders to file written submissions, he was permitted to make oral submissions at hearing.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)noted both its own, and the Department’s, attempts to contact EKT20 by post and telephone: CB 144-145, Authority Decision at [4]-[9];
(b)considered whether to exercise its discretion under s 473DC of the Migration Act to obtain new information from EKT20, given EKT20’s failure to attend the Delegate’s Interview: CB 145, Authority Decision at [10];
(c)noted that the Department had been unable to contact EKT20 because he had not:
(i)notified the Department of changes to his contact details; and
(ii)contacted the Department to follow up on the status of the SHE Visa application in the almost two years since lodgement: CB 145, Authority Decision at [12];
(d)noted that EKT20:
(i)was assisted in the preparation of the SHE Visa application by Refugee Legal;
(ii)provided comprehensive written claims;
(iii)participated in two entry interviews; and
(iv)provided reasons for the discrepancies between the evidence in his entry interviews and written claims: CB 145, Authority Decision at [13];
(e)was satisfied that EKT20 had been given an opportunity to:
(i)engage in the SHE Visa application process;
(ii)present his claims; and
(iii)respond to issues,
and decided in the circumstances not to exercise the discretion under s 473DC of the Migration Act to obtain new information from EKT20: CB 145-146,
at [14];
Authority Decision(f)outlined discrepancies between EKT20’s evidence provided at his entry interviews and his written claims: CB 147-148, Authority Decision at [19]-[22];
(g)was not persuaded by EKT20’s explanation that he was too scared and embarrassed to tell the truth in his entry interviews: CB 148-149, Authority Decision at [24]-[25];
(h)did not accept that if M had been killed in a shooting in 2013, as claimed in the Personal Statement, that EKT20 would have stated that M had died of cancer in 2005 at the first entry interview: CB 149, Authority Decision at [25];
(i)
was not satisfied that any embarrassment felt by EKT20 would outweigh a desire to tell the truth about death threats from the Prominent Family in circumstances where EKT20 had travelled by boat to seek protection in Australia because he feared for his life:
CB 149,Authority Decision at [25];
(j)found it to be “not insignificant” that EKT20 did not allude, even in general terms, to being personally targeted, and “problematic” that he failed to mention his girlfriend of three years, even if he had been too embarrassed to mention their sexual relationship: CB 149, Authority Decision at [25];
(k)noted discrepancies in EKT20’s evidence with respect to the location of his employment: CB 149, Authority Decision at [26];
(l)noted that nothing had been provided from Lebanon to evidence any of the claimed events or the existence of the Prominent Family: CB 149, Authority Decision at [27];
(m)found it difficult to accept that EKT20’s family would not have attracted attention from the Prominent Family if EKT20’s claims were credible: CB 149, Authority Decision at [28];
(n)considered EKT20’s evidence in its entirety, and was not satisfied that EKT20 was recalling a genuine personal experience, and did not accept that as at May 2013:
(i)he was involved in a pre-marital relationship in Lebanon,
(ii)he had come to the adverse attention of the Prominent Family; and
(iii)
that M was shot dead in 2013: CB 149, Authority Decision at [29]
(collectively “Claimed May 2013 Events”);
(o)
was not satisfied that EKT20 faced a real chance of any harm in relation to the
Claimed May 2013 Events: CB 149, Authority Decision at [29];
(p)
accepted EKT20’s “broadly consistent evidence” that he left Lebanon in 2013 in part due to the war with Syria, but noted that in the Personal Statement, he did not claim to fear harm on return to Lebanon in connection with war or conflict: CB 150,
Authority Decision at[30];
(q)accepted that EKT20 was a Sunni Arab from the north of Lebanon, and noted he had not claimed to fear harm on the basis of his religious or ethnic profile, and on the information before it was not satisfied that EKT20 faced a real chance of harm on that basis: CB 151, Authority Decision at [35];
(r)found that EKT20 did not claim to hold a political profile and did not accept that he faced a real chance of harm on the basis of political or sectarian violence, and found that country information did not indicate a lack of ongoing generalised security or violence, and while it accepted that EKT20 saw fighting and casualties of war prior to coming to Australia, it was not satisfied that he faced a real chance of harm due to insecurity or generalised violence: CB 151, Authority Decision at [35];
(s)noted that EKT20 had not claimed to fear that he would face severe economic hardship or be unable to subsist on his return to Lebanon, and on the basis of his consistent evidence that he had been employed as a long term restaurant manager, was not satisfied that his capacity to subsist would be threatened or that he would otherwise face serious harm because of challenges in finding employment: CB 151, Authority Decision at [36];
(t)found that EKT20 did not have a well-founded fear of persecution in accordance with s 5J of the Migration Act: CB 151, Authority Decision at [37], and consequently found that EKT20 did not satisfy the definition of refugee in s 5H(1) of the Migration Act, and did not satisfy s 36(2)(a) of the Migration Act: CB 151, Authority Decision at [38];
(u)found, in relation to its complementary protection assessment, that although EKT20 had not claimed to fear harm on any economic basis, it accepted that he may face challenges in finding employment, but was not satisfied that this would amount to significant harm as defined in the Migration Act: CB 152, Authority Decision at [41];
(v)otherwise relied on its anterior findings rejecting EKT20’s key claims in their entirety to conclude that EKT20 did not face a real risk of suffering significant harm in Lebanon for any reason: CB 152, Authority Decision at [42], and found that EKT20 did not satisfy s 36(2)(aa) of the Migration Act: CB 152, Authority Decision at [43]; and
(w)affirmed the Delegate’s Decision: CB 152, Authority Decision at p 10.
EXTENSION OF TIME APPLICATION
Prescribed period for filing and delay
EKT20 had 35 days from the date of the Authority Decision within which to file an application for judicial review: Migration Act, s 477(1). The prescribed period within which EKT20 could apply for judicial review ended on 27 September 2019. EKT20 applied for the Extension of Time Application on 12 October 2020, 381 days out of time.
Grounds
The Extension of Time Application has two grounds as follows:
1. I was unaware of the IAA’s decision until 28 September 2020.
2. I made this application as soon as possible after becoming aware of the IAA’s decision.
Requirements
The Proposed Judicial Review Application is presently incompetent by virtue of s 477(1) of the Migration Act, and remains so unless the Court grants an extension of time pursuant to s 477(2) of the Migration Act.
The Court may order an extension of the prescribed 35-day period to seek judicial review of the Authority Decision if:
(a)an extension of time application is made in writing specifying why it is necessary in the interests of the administration of justice to extend time: Migration Act, s 477(2)(a); and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice to extend time: Migration Act, s 477(2)(b).
Application in writing – specifying why
The Extension of Time Application filed on 12 October 2020 includes an application in writing for an extension of time and EKT20’s supporting affidavit, also filed on 12 October 2020,
sets out the reasons relied on by EKT20 for the delay, and it was therefore not in dispute at hearing that s 477(2)(a) of the Migration Act has been satisfied.
Whether in the interests of the administration of justice
Law
In considering the law with respect to extending time in which to make an application for judicial review under the Migration Act regard must be had to the judgments of the High Court in Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”),
which, in summary, provide as follows:
(a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
(b)
the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period:
Brisbane South Regional Health AuthorityCLR at 553 per McHugh J;
(c)where a significant period of time has elapsed, and in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
(d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority CLR at 553 per McHugh J.
With the above statements of principle in mind, the factors the Court generally takes into account when determining whether to grant an extension of time pursuant to s 477(2) of the Migration Act include, but are not necessarily limited to, the following:
(a)the extent of the delay
(b)the explanation for the delay;
(c)any prejudice that may be suffered; and
(d)the merits of the Proposed Judicial Review Application,
see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”) and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.
Delay
In this case there is a very substantial delay. The delay is almost eleven times the existing limitation period, and an extension of time, if granted, would extend the period granted to EKT20 in which to file to 416 days. As was stated in Marks at [16] per McHugh J where a significant period of time has elapsed, and “[i]n all but very exceptional cases”, the limitation period should be “rigidly applied”. In the Court’s view, for reasons set out below in relation to both the explanation for the delay (at [15]-[30]) and the merits of the Proposed Judicial Review Application (at [33]-[52]) there is, on the evidence, nothing “exceptional”, or obviously exceptional, in the circumstances of EKT20’s case.
This is a case in which the delay in bringing the Proposed Judicial Review Application is so very substantial that, of itself, it does not weigh in favour of granting the Extension of Time Application.
Explanation for the delay
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.
Unwarrantable delay in the absence of any acceptable explanation may be a sufficient reason alone to deny the grant of discretionary relief: AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 at [57] and [61] per Bromwich J; WZAUU v Minister for Immigration and Border Protection [2019] FCCA 2214 at [42] per Judge Lucev. Further, with such a very substantial delay, EKT20’s “case would need to be exceptional” before the time for commencing proceedings would be extended: Marks at [13] per McHugh J,
citing Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458; (1990) 93 ALR 479; ALJR at 459 per McHugh J.EKT20’s explanation is contained in:
(a)the grounds of the Extension of Time Application;
(b)the EKT20 Affidavit; and
(c)EKT20’s oral submissions at hearing.
In the grounds of the Extension of Time Application EKT20 contends that he was unaware of the Authority Decision until 28 September 2020, and that he made the Extension of Time Application as soon as possible thereafter.
EKT20’s Affidavit expands on these contentions:
(a)at [6]-[8] by detailing two brief periods of imprisonment in Victoria:
(i)in 2018 for one month, and
(ii)in August 2020 for 40 days,
followed by a transfer to immigration detention at MITA from 20 September 2020; and
(b)at [9]-[14] as follows:
9.After being transferred to MITA, I contacted Refugee Legal, to see if there was any updated on my application for a Safe Haven Enterprise visa, lodged with their assistance in September 2017.
10.I understand that Refugee Legal spoke with MITA status resolution staff and on 28 September 2020, the Second Respondent provided a copy of a decision in relation to my application to Refugee Legal.
11.I was completely unaware that the First Respondent had refused my application for a Safe Haven Enterprise visa, that this decision had been referred to the Second Respondent, and that the Second Respondent had affirmed this decision on 23 August 2019.
12.The first that I became aware of all of these decisions was on 28 September 2020.
13.I understand that on 29 September 2020, Refugee Legal contacted Victoria Legal Aid, requesting their assistance with my application.
14.On 2 October 2020, I spoke with Victoria Legal Aid, who assisted me to complete this application.
EKT20’s submissions were as follows:
(a)he did apply on time and did not delay: Transcript, pp 3 and 4;
(b)he applied with a lawyer and assented for the lawyers to apply, and that they advised him they had done everything: Transcript, pp 3 and 5;
(c)he had said everything to the lawyer or lawyers, but the lawyer or lawyers did not do their work properly: Transcript, p 5;
(d)he had spoken to a lawyer on the phone whilst at the MITA, and when asked when that was, said “could be [in] 2019”: Transcript, p 5;
(e)he had not seen any or received any correspondence from the Department: Transcript at pp 8, 11 and 12, because all the correspondence sent to him used to be taken by his maternal uncle, and was destroyed by his maternal uncle and put into the rubbish bin: Transcript, pp 8 and 12; and
(f)he tried to contact the Department “more than 381 times”, but his calls were disconnected, after he gave his name because his English language skills were not that good: Transcript, pp 11 and 12.
There are several reasons why EKT20’s explanation is not particularly satisfactory.
EKT20’s assertion that there is no delay is plainly wrong. Why else would he sign, and cause to be filed, the Extension of Time Application, and in support thereof, the EKT20 Affidavit? And, in any event, there is a very substantial delay of 381 days.
In relation to EKT20’s assertions concerning the activities and conduct of a lawyer on his behalf, it is fair to observe that whilst he may have received some assistance from a lawyer or lawyers from Refugee Legal or Victoria Legal Aid at a time or times since 28 September 2020 when he says he first became aware of the Authority Decision: EKT20 Affidavit at [9]-[14], no lawyers have ever acted for him, nor filed documents for him, in relation to the Extension of Time Application. Indeed, save for the circumstance discussed in [20] below, there is no evidence that any lawyer acted on behalf of EKT20 concerning any matter related to the SHE Visa application from the time of the Refugee Legal September 2017 Letter. There is therefore no substance to EKT20’s assertion that the lawyer or lawyers did not do their job properly, as there was evidently no lawyer acting for or assisting EKT20 between the time of the handing down of the Authority Decision in August 2019 and 28 September 2020. It is not therefore apparent to the Court that any conduct of any lawyer from Refugee Legal or Victoria Legal Aid contributed to any delay in the filing of the Extension of Time Application, and in that regard it is to be observed that only 14 days of the 381 day delay is attributable to the period between when EKT20 says he became aware of the Authority Decision and the filing of the Extension of Time Application. In circumstances where EKT20 was then in detention in MITA no criticism can be levelled against EKT20 or those lawyers then assisting him in respect of that 14 day delay. It does, however, still leave a very substantial delay of 367 days not addressed by this aspect of EKT20’s explanation.
Insofar as EKT20 asserts that he “could” have contacted a lawyer “in 2019” from MITA,
there is no evidence of any such contact in EKT20’s Affidavit (which bears the hallmarks of having been prepared with legal assistance), and nor would any such contact need to have been made in 2019 given his evidence that he was “completely unaware” of the Delegate’s Decision, the referral of the Delegate’s Decision to the Authority, and the Authority Decision:
EKT20 Affidavit at [11], until 28 September 2020: EKT20 Affidavit at [12].
In addition, the evidence in EKT20’s Affidavit does not indicate that he was in MITA in 2019.
Although it was said by EKT20 that he was “completely unaware” of the Delegate’s Decision, referral to the Authority, and Authority Decision until 28 September 2020: EKT20 Affidavit at [11], there is reason to be cautious in accepting EKT20’s assertion that his maternal uncle intercepted and destroyed all correspondence to EKT20 from the Department.
That specific assertion was not included in EKT20’s Affidavit. Further, in August 2019 the Authority sent to EKT20 the Authority Referral Acknowledgment Letter, which was returned two weeks after being sent marked “no longer at the address”. The return of the Authority Referral Acknowledgment Letter, marked “no longer at this address” is consistent with EKT20 having moved residence and failed to advise the Department and the Authority, and sets up an equally plausible alternative reason why EKT20 might not have received relevant correspondence from the Department and the Authority, namely that he failed to advise the Department and the Authority of any change of address.
It is proper to observe that it was EKT20 who specified in his SHE Visa application that he did not wish to receive electronic correspondence (that is, email). The Department and the Authority were therefore required to contact EKT20 by post, and might also have sought to contact him by mobile telephone, and in that regard:
(a)EKT20 did not respond to any correspondence from the Department sent to the Residential Address: see [4(d)-(t)] above;
(b)the Authority:
(i)
on 2 August 2019 sent EKT20 the Authority Referral Acknowledgement Letter and a copy of the Authority Practice Direction to the Residential Address, advising EKT20 that he could provide a written submission to the Authority and new information that may be considered in exceptional circumstances:
CB 168 Authority Decision at [7];
(ii)
on 15 August 2019 the Authority attempted to contact EKT20 on the mobile telephone number recorded on his SHE Visa application to confirm whether he had received its correspondence, however the number was disconnected:
CB 169 Authority Decision at [8];
(iii)on 16 August 2019 the Authority received by return mail the Authority Referral Acknowledgement Letter stating that EKT20 was no longer at the Residential Address: CB 169 Authority Decision at [9];
(iv)
later on 16 August 2019 the Authority attempted to contact EKT20 on a second mobile telephone number recorded on Departmental correspondence dated
20 September 2017, but that number was also disconnected: CB 169 Authority Decision at [9]; and
(v)
the Authority contacted the Department to confirm EKT20’s contact details,
and the Department confirmed that the details held by the Authority were the same as those recorded on the Department’s system: CB 169 Authority Decision at [9].
The Delegate’s Decision and the Authority Decision were made on 29 July and 23 August 2019 respectively, both dates upon which, by EKT20’s own evidence, he was not in prison:
EKT Affidavit at [6]-[8]. While EKT20 details two short periods of imprisonment, this does not explain the delay or how the two periods of imprisonment might have rendered him unable to provide updated contact details (both postal address and mobile telephone number) to the Department and the Authority.
The Authority was only obligated to provide the Authority Decision to EKT20 at the most recent address provided by EKT20 for the provision of documents: the Authority was not obligated to track down EKT20 wherever he may have been, and it was sufficient for the Authority to post documents to the Residential Address, and if, as here, it did so, they were deemed to have been received by EKT20 within seven working days:
Migration Act, ss 473HB(5)(c)(i) and(ii) and 473HD(4). The efforts made by the Authority to contact EKT20 went beyond what the Authority was required to do in the circumstances.
At hearing EKT20 submitted that he rang the Department every day for 381 days and was disconnected on every occasion by the Department. There is no evidence of a single call,
let alone 381 calls, in the Departmental file in the CB. EKT20’s Affidavit, prepared with legal assistance, remarkably, given the nature of the claimed calls, contains no evidence concerning this issue. Further, it is pertinent to observe that it was said to be the Department, and not the Authority, which EKT20 rang each day. Setting aside the coincidence between the number of days upon which EKT20 submitted that he rang the Department being identical to the number of days for which an extension of time is sought, the submission is otherwise seemingly implausible for two reasons:
(a)first, given EKT20’s evidence that he was completely unaware of the Authority Decision until 28 September 2020 he had no particular reason to be ringing the Department on each and every day after the expiration of the 35 day time limit under section 477(1) of the Migration Act; and
(b)
second, given EKT20’s evidence that he became aware of the Authority Decision on 28 September 2020, and was receiving some legal assistance from Refugee Legal and Victoria Legal Aid in filing the Extension of Time Application 14 days after on
12 October 2020, there would have been no discernible reason for EKT20 to continue to ring the Department from day 368 to day 381.
EKT20’s delay of 381 days is very substantial and has not been satisfactorily explained,
either at all or at least to the extent of the first 367 days, and the failure to satisfactorily explain weighs against the grant under s 477(2) of the Migration Act of such a very substantial extension of time.
Prejudice
Even if the Minister were to suffer no prejudice, other than costs, if time to file the Proposed Judicial Review Application were to be extended, the mere absence of prejudice to the Minster is not enough to justify an order to extend time: Hunter Valley Developments, FCR at 348-349 per Wilcox J. The Minister should not, however, be put to the burden and cost of additional litigation in circumstances where EKT20’s delay is so very substantial and remains unsatisfactorily unexplained, and where for reasons set out at [33]-[51] below there is no reasonably arguable basis for the sole ground of the Proposed Judicial Review Application: Marks at [17] per McHugh J; WZAWB v Minister for Immigration and Border Protection [2016] FCCA 1345; (2016) 309 FLR 398 at [109] per Judge Lucev.
Prejudice is therefore a factor which weighs against the grant of an extension of time.
Whether Proposed Judicial Review Application reasonably arguable
The Proposed Judicial Review Application has a single ground as follows:
1.The decision of the IAA was legally unreasonable.
EKT20’s submissions
The Registrar’s Orders required EKT20 to file and serve written submissions 28 days before the final hearing on 24 January 2022: see [4(x)] above. EKT20 failed to file written submissions in accordance with the Registrar’s Orders, or otherwise.
At hearing the Court asked EKT20 whether he wished to say anything in relation to why the Authority Decision was unreasonable, the response to which was (at Transcript, p 4):
“Why is it unreasonable? I am accepting all the decisions made by the Department.”
Further questioning by the Court (at Transcript, p 5) elicited responses to the effect that:
(a)EKT20 wished the Court “to continue in the processing”;
(b)EKT20 had “said everything to the lawyer, but the lawyer didn’t do his work properly”; and
(c)“Who said it [Authority Decision] was wrong?”.
There was, however, nothing in the above submissions made by EKT20 which went to the alleged unreasonableness of the Authority Decision.
Minister’s submissions
The Minister’s submissions with respect to unreasonableness were as follows:
(a)the allegation of unreasonableness was not particularised, rendering it meaningless and providing a sufficient basis for the ground to be dismissed;
(b)
the Authority Decision was based on a considered assessment of EKT20’s claims,
and relevant country information, and the Authority’s findings flowed logically from, and were reasonably open, on the material before the Authority; and
(c)the Court cannot review the merits of the Authority Decision.
Consideration - whether Proposed Judicial Review Application reasonably arguable
Law
In determining whether the sole ground in the Proposed Judicial Review Application is reasonably arguable it is not necessary for EKT20 to positively establish that the
Proposed Judicial Review Application will succeed at final hearing: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”) (from which an appeal was dismissed: SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158). It will, however, rarely be in the interests of the administration of justice to extend time to file a proposed application which has little or no prospect of success:
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] per Mortimer J, for as the Federal Court observed in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] per Mortimer J:It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
In determining whether the sole proposed ground of review is reasonably arguable the Court is only required to deal with it, and to examine it, in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of the sole proposed ground of review; the issue being not whether EKT20 will be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic and necessarily preliminary evaluation of the sole proposed ground of review, reveals that it might be reasonably arguable if fully examined as to its merit: SZTES at [48] per Wigney J; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] per Mortimer J (in a passage expressly approved by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] per Tracey, Perry and Charlesworth JJ); DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475; (2020) 382 ALR 246 at [68] and [76] per Collier, Rangiah and Derrington JJ.
An arguable case on the merits of the Proposed Judicial Review Application requires EKT20 to establish that there is a reasonably arguable case of material jurisdictional error in the Authority Decision such that the Court might set aside the Authority Decision: 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; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2]-[4] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
Failure to particularise
The sole proposed ground of judicial review is that “[t]he decision of the IAA was legally unreasonable”. EKT20 did not file written submissions and did not particularise the claim in oral submissions: see [20] and [34]-[36] above.
The failure to particularise a ground of review can be a sufficient basis for a ground of review to be dismissed: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 (“DKN20”) at [60] per Perry J citing WZAVW.
Even where there is an unparticularised ground of review it is necessary for a self-represented applicant to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a review ground: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] per Colvin J, and then to have regard to any oral submissions so made: DKN20 at [60] per Perry J; FHX20 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202 at [17] and [20] per Judge Ladhams. Nothing that was put by EKT20 in his oral submissions: see [20] and [35]-[36] above,
identified or particularised any error or error of law, let alone the alleged unreasonableness,
or any other type of jurisdictional error, in the Authority Decision.
The failure to particularise the ground therefore renders it meaningless and provides a sufficient basis for it to be dismissed.
Unreasonableness
In certain circumstances unreasonableness (the basis pleaded in the sole ground of the Proposed Judicial Review Application), and more correctly, legal unreasonableness, may constitute jurisdictional error: Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [63]-[76] per Hayne, Kiefel and Bell JJ.
Reasonableness is an implied condition on the valid exercise of the Authority’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness is predicated on the scope and purpose of the statutory functions conferred upon the Authority in Pt 7AA of the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ.
In Ministerfor Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 (“Stretton”) at [9] per Allsop CJ it was observed that:
The conclusion that a decision is legally unreasonable by reference to the outcome, whether or not there are reasons therefor, is assisted by reference to expressions taken from cases such as those mentioned in [5] above. Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision. The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power - a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual - will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.
Legal unreasonableness is fact dependent, and each case must be examined and determined in light of the individual circumstances and evidence in a proceeding: Stretton at [10] per
Allsop CJ; Djokovic vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [30]-[33] per Allsop CJ, Besanko and O’Callaghan JJ (and cases there cited).
As will be evident from the setting out of the content of the Authority Decision at [5(a)-(w)] above the Authority:
(a)set out EKT20’s claims for protection: CB 146, Authority Decision at [15];
(b)
noted the relevant law with respect to both the refugee and complementary protection criteria: CB 146, Authority Decision at [16] and CB 151-152, Authority Decision at
[39]-[40];
(c)
dealt with the EKT20’s claims by reference to the alleged events in Lebanon
(including the Claimed May 2013 Events) and EKT20’s possible return to Lebanon, referring in that regard to appropriate country information, and the relevant law referred to at (b) above; and
(d)made findings that logically followed from, and were reasonably open to be made on the material considered by the Authority.
Assessing the matters to which the Authority had regard in the Authority Decision, and doing so on the required reasonably impressionistic basis, it is not evident that the Authority Decision is unreasonable in the legal sense described in Li, Stretton or Djokovic, and it is not therefore reasonably arguable that the Authority Decision is affected by jurisdictional error on this basis.
Jurisdictional error otherwise
As the Federal Court observed in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J (and see also Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev) in circumstances where a party is self-represented the Court must endeavour to remain alert to the possibility of jurisdictional error being made by the Authority. The oral submissions made by EKT20:
see [20] and [35]-[36] above, do not go to the question of jurisdictional error, or any arguably identifiable error at all, and, if anything, can only be characterised as seeking merits review of the Authority Decision, which is not permissible on an application for judicial review under
s 476 of the Migration Act: 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 per Brennan CJ, Toohey, McHugh and Gummow JJ. There is otherwise nothing in this matter which would appear to indicate that any jurisdictional error was made by the Authority.
Conclusion - whether Proposed Judicial Review Application reasonably arguable
For the reasons outlined at [33]-[51] above:
(a)EKT20’s proposed sole ground of judicial review pleaded in the Proposed Judicial Review Application lacks sufficient reasonably arguable merit for the Court to make an order for an extension of time under s 477(2) of the Migration Act; and
(b)no other jurisdictional error is reasonably apparent in the Authority Decision,
and therefore EKT20 has not established a reasonably arguable case of jurisdictional error in the Authority Decision.
CONCLUSION AND ORDERS
The Court has concluded that:
(a)
the very substantial delay, the lack of a satisfactory explanation as to the delay,
and the prejudice to the Minister, all weigh against the grant of an order extending time under s 477(2) of the Migration Act; and
(b)a reasonably impressionistic examination of the proposed sole ground of review reveals that the Proposed Judicial Review Application lacks sufficient reasonably arguable merit to warrant an order extending time under s 477(2) of the Migration Act.
It follows that there will be an order dismissing the Extension of Time Application.
Due to the dismissal of the Extension of Time Application, it is unnecessary to make a further order that the Proposed Judicial Review Application be dismissed as incompetent:
BZABK v Minister for Immigration and Citizenship[2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [34] per Judge Lucev.
The Court will hear the parties as to costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 10 February 2022
1
43
2