EKU17 v Minister for Immigration
[2018] FCCA 2846
•7 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EKU17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2846 |
| Catchwords: MIGRATION – Protection visa application – application for extension of time – application for adjournment – application for judicial review made over two years outside of time – whether extension should be allowed in the interests of the administration of justice – whether grounds of application contain merit – application for extension of time refused – application otherwise dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.474, 477 |
| Cases cited: Commissioner forAustralian Capital Territory Revenue v Alphaone Pty Ltd (1994) FCR 576 |
| Applicant: | EKU17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIA BAILEY |
| File Number: | SYG 3056 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 7 May 2018 |
| Date of Last Submission: | 7 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Lawrence |
| Solicitor for the Applicant: | Michaela Byers, Solicitor |
| Solicitors for the Respondents: | Ms D Watson, Australian Government Solicitor |
ORDERS
The applicant’s application for an adjournment is refused.
The application for an order under s.477(2) of the Migration Act 1958 (Cth) is refused.
The application is otherwise dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3056 of 2017
| EKU17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIA BAILEY |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
The applicant has been represented since the beginning of these proceedings and has had an opportunity to put on any evidence in support of his application for an extension of time, and did so, in his affidavit dated 21 September 2017.
While I accept that the affidavit could be expanded upon, or perhaps explained a little better or in more detail as any affidavit potentially could be, the factors weighing against giving a further opportunity to do that include the representation of the applicant as mentioned above and also the difficulty that this Court faces of having very little availability and very little flexibility in the way in which it can deal with cases and adjournments. As such, it is getting more difficult to warrant an adjournment unless there are very good reasons for allowing that.
I do not say that that is a standard, but it is approaching that. Even if I were to accept that further evidence could give a reasonable explanation for the significant delay in bringing these proceedings, that is, two years and three months beyond the report of the protection obligations determination evaluation, I do not think that there would be sufficient merits to warrant the extension of time under s.477(2) of the Migration Act 1958 (Cth).
The particulars in ground 1 potentially are that the person who prepared the report ought to have put her conclusions about the applicant’s claims to him for comment.
Even assuming that the applicant had not been put on notice prior to that report, in either of the earlier reports or at the interview (and there is no evidence of everything that took place in the interview), these fall within matters that were open evaluations of the evidence in light of the questions to be asked by the assessor: namely, what protection obligations arise on the claims made and on the country information before the second respondent. Based on authorities such as Commissioner forAustralian Capital Territory Revenue v Alphaone Pty Ltd (1994) FCR 576; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 and Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [9], they would not be matters that need to be expressly raised with an applicant in order for that applicant to have been afforded procedural fairness. The first ground has little merit.
The second ground relies upon the fact that on 1 May 2015 there was a change of officers within the Department of Immigration who was to determine the assessment of protection obligations which was different from the officer who had interviewed the applicant on 14 May 2014.
In similar circumstances, the High Court in the Minister for Immigration & Border Protection v WZARH (2015) 256 CLR 326 held that there had been a denial of procedural fairness. However, there are significant differences in the circumstances of this case. In WZARH there was no notice given to the applicant that the person who was to make the decision was not the person who had conducted the interview, and therefore the applicant, or respondent in the High Court, never had the opportunity to make any submissions as to whether or not the advantage that the interviewer had in seeing the applicant ought also to have been held by the decision-maker by, for example, holding a further interview.
The Court accepted that the respondent in that case was, and most people are generally not, entitled to insist upon the observance of a particular form of decision making process. However, the Court found that it was the denial of the opportunity to at least say whether the advantage that I have referred to ought to be taken into account that was said to constitute the denial of procedural fairness.
In this case in the letter dated 1 May 2015 (from the second respondent who ended up making the decision but who had not been the interviewer), the applicant was told that “…an officer other than the person who conducted that interview will now be deciding your application for a Protection visa”. Leaving aside the inaccuracy perhaps of the reference to “application for protection visa”, the letter continued “[t]he Officer making the assessment may make that assessment without further contact with you” and suggested that if the applicant wished to make any further submissions to the Department, he was invited to do so in accordance within the 28 day timeframe. In my view, that is important because it put the applicant clearly enough on notice that there was to be a different decision-maker, and thereby providing the applicant with the reasonable opportunity to make the submissions that he ought to be given a further interview with that decision-maker.
Although this is not decisive, I note that the applicant was at that time, and continued to be, represented by migration agents and could reasonably be expected to have obtained advice about what course to take from those agents. The agents in fact made submissions on 2 June 2015 but did not suggest that the applicant ought to be given a further opportunity for an interview given the change of personnel involved in the decision making process.
Those circumstances distinguished this case from that in WZARH and, in my view, establish that there was no denial of procedural fairness. Considering the matter at a preliminary level sufficient for the purposes of determination of whether there be an adjournment of the proceedings to allow the applicant to obtain further evidence, and further taking into account the difficult situation which Counsel for the applicant faces today in not having an instructing solicitor, and indeed not having, which I accept, met or conferred with the applicant personally, I do not see that it is in the interests of the administration of justice to allow the adjournment.
The applicant seeks review of a decision, as that word is understood in s.474(3) of the Act, of an officer of the Department under the protection obligations evaluation process dated 7 July 2015. The officer concluded that the applicant was not a person in respect of whom Australia had protection obligations and a recommendation was made to that effect.
Given that that was a decision, within the meaning of s.474, I have formed the conclusion for reasons I have given earlier, that the time limit in s.477 of the Act applies, particularly in light of the decision of the High Court in Minister for Immigration & Border Protection v SZSSJ (2016) 259 CLR 180. In his application, the applicant included an application for extension of time and, for that reason, the first precondition to the exercise of power under s.477(2) is satisfied and the question remains whether the Court is satisfied that it is necessarily in the interests of the administration of justice that there be an extension of time.
In determining an application for an adjournment, I have considered the merits of the grounds raised and I adopt what I have said there. In addition to that, I must consider the lengthy delay, namely two years and three months and the reasons given by the applicant for that delay. While I consider that his health, lack of money, lack of English and, no doubt, lack of any detailed knowledge of the judicial system go some way to explaining why the applicant might not have acted more quickly, I do not accept that there is a reasonable excuse for the significant delay.
However, as I have said in respect of the adjournment application, even if I did consider that there were a reasonable excuse for the delay, the lack of merit, in my view, would have outweighed that, so that I am not satisfied that it is necessarily in the interests of the administration of justice to make an order under s.477(2) extending the period for making an application for orders in respect of a decision dated 7 July 2015.
The parties have not put any other relevant considerations forward. I note that there is probably no relevant prejudice against the Minister and I take that as a neutral factor. The application for an extension period under s.477(2) of the Act has been unsuccessful and as a consequence the proceedings have to be dismissed.
It may be accepted that such an order is at least arguably interlocutory in nature and the Federal Circuit Court Rules 2001 (Cth) make provision for orders for costs in the sum of $3,600 approximately. The Minister seeks an order for costs higher than that amount given the complexity of the matter, and there have been some complexities even though the matter could, with the assistance of Counsel, be dealt with rather quickly today.
Those complexities include the jurisdiction of the Court, the nature of the decisions to which s.477 of the Act relate, the interplay between a decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration & Border Protection [2014] FCAFC 12 and the High Court in SZSSJ, as well as the complexities of procedural fairness arguments that arise in decision-making processes such as the one under consideration in these proceedings. In light of those matters, the Minister submits that orders ought to be made in the amount more akin to those that are commonly made in this Court for final hearings which is in the vicinity of $7,300 according to the schedule to the Rules.
Counsel for the applicant submits that this matter was dealt with very quickly today and not in the same way as a final hearing would have been conducted. I accept Counsel’s submissions as far as they go; the difficulty is that those submissions do not really address the time taken in this matter with regards to the underlying complexities and therefore, the legal issues that had to be dealt with by the Minister in preparing for the matter, rather than simply by reference to the hearing time that was taken.
It is almost axiomatic that the amount of time spent in hearing does not necessarily reflect the complexities of the legal matter and time can be impacted by very many things, none of which have anything to do with complexity. The Rules give the Court a broad discretion in the exercise of the power to award costs. There is certainly no norm provided by the Rules such that the schedule must be followed, although, in my experience, they ordinarily are followed unless there is something that brings the cases outside what might loosely be called an “ordinary migration case”.
In the circumstances of this case, and given the legal difficulties that arose, I am satisfied that an order in excess of the amount set by the schedule for interlocutory matters ought to be given, but I do make some allowance for the fact that there was a relatively quick hearing.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 10 October 2018
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