EKZ24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 315
•6 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EKZ24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 315
File number(s): PEG 220 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 6 March 2025 Catchwords: MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL – application to extend time to file the application – delay of 4 days – where the applicant’s oral application to adjourn the hearing due to unwellness not allowed – where the applicant failed to comply with orders to give further evidence and submissions after the hearing – where there is an insufficient explanation for the delay – where the proposed grounds of review lack merit – application for extension of time refused – application dismissed Legislation: Migration Act 1958 (Cth) ss 477(1), 477(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BWK15 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 268
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 30 January 2025 Place: Heard in Perth, delivered in Darwin Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms Martin Counsel for the Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 220 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EKZ24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
6 MARCH 2025
THE COURT ORDERS THAT:
1.The Application for extension of time be dismissed.
2.The Application filed on 1 July 2024 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 LIVERIS
The applicant is a citizen of India. On 22 December 2017, he applied for a Temporary Activity (GG 408) visa, to attend the Commonwealth games in Brisbane, which was granted on the same day.
On 14 January 2018, the applicant travelled to Sydney. On 8 May 2018, he applied for a protection visa, claiming that he found his life under threat in India, so he decided to leave the country. He said he feared harm from his neighbours after a dispute resulted in the death of his neighbour’s father. He said that the family started to blackmail him, and that the neighbours paid money to the Police to prevent the applicant reporting them. He said he decided to compromise and pay money, but the family have continually asked for money.
On 13 July 2018, the delegate refused to grant the applicant the protection visa. On 30 July 2018, the applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision.
The Tribunal hearing took place on 15 May 2024. On that day, the applicant attended the hearing, and was assisted by a Hindi interpreter.
On 23 May 2024, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
On 1 July 2024, the applicant applied for judicial review of the Tribunal’s decision in this court. The applicant has been self-represented throughout these proceedings.
Pursuant to s 477(1) of the Migration Act 1958, the application for judicial review must be made within 35 days of the date of the Tribunal’s decision. As the application was filed on 1 July 2024, it is out of time by 4 days.
Under s 477(2) of the Act, the court may make an order to extend the 35 day period as it considers appropriate if it is satisfied that it is necessary in the interests of the administration of justice to do so.
In the application, the applicant has applied for an extension of time, on the grounds that he drafted the application for judicial review, but “could not lodge it due to the maintenance of the website”.
The Minister opposes an order extending time, on the basis that the explanation for the delay is inadequate on the evidence and there is no merit in the proposed grounds of review.
Application for an adjournment
On 29 January 2025, the day before the hearing, the applicant sent the court an ex parte email stating that he “won’t be able to attend court tomorrow. I am not feeling well. Can you please give me another date”.
The applicant was told by way of reply email that his request was not proper, not supported by any evidence, and that should he wish to apply for an adjournment he should attend the hearing and, if necessary, make an adjournment application.
The applicant appeared in-person at the hearing on 30 January 2025. Despite stating in the application that he did not require an interpreter, the applicant said that he could not understand English. A Hindi interpreter was arranged by the court at short notice to assist the applicant. The interpreter appeared by Microsoft Teams.
The applicant applied for an adjournment of the hearing because he was not feeling well. He said that his health was down, he had a fever, his hearing was affected and he could not speak loudly. He said he was too unwell to go to the doctor the day before, and that he had a doctor’s appointment later in the day.
He did not supply any evidence in support of his adjournment application. In considering the application, I had regard to the overarching purpose of the civil practice and procedure provisions set out in s 190 of the Federal Circuit and Family Court of Australia Act 2021.
In taking the applicant’s explanation at its highest, I was not satisfied that his unwellness prevented him from preparing for and effectively participating in the hearing.[1] In not being so satisfied, and in exercising my discretion to refuse the application for an adjournment, I considered arrangements including permitting the applicant to remain seated for the duration of the hearing, and for him to speak through the interpreter, to appropriately manage any disadvantage. I also made orders providing the applicant the further opportunity to file and serve written submissions and evidence in support of the application an extension of time after the hearing.
[1] NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6].
Application for extension of time
In BWK15 v Minister for Immigration and Multicultural Affairs,[2] Judge Blake summarised the principles that apply to an application for extension of time under s 477(2) as follows:
[2] [2025] FedCFamC2G 268 at [17] – [23].
Principles
The expression ‘in the interests of the administration of justice’ is not defined in the Act.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] HCA 28 (‘Katoa’), a majority of the High Court (Kiefel CJ, Gageler, Keane and Gleeson JJ) stated at [12] with respect to the similar provision at sections 477A(2) of the Act:
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.
(footnotes omitted)
Further, at [13], the majority noted and endorsed the well-established guiding principles stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. Those principles identify the following matters as requiring consideration:
(a) the extent of the delay;
(b) the explanation of the delay;
(c) any prejudice to the respondents;
(d) the interests of the public at large; and
(e) the merits of the substantive application. It is appropriate to assess the merits of the proposed grounds of review at a ‘reasonably impressionistic level’ (Katoa at [17]; CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447 at 452 [19]).
Further, in MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585, Mortimer J at [63] considered that the correct approach to the assessment of the merits of the proposed application for the purpose of deciding whether to extend time ‘may be expressed by the use of language such as whether the ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”’.
In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, McHugh J discussed the history and rationale for limitation periods. At 553–554 of the judgment, His Honour stated:
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is “to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced” But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
(footnotes omitted)
In Commonwealth of Australia; ex parte Marks (2000) 75 ALJR 470 (‘Marks’), the High Court of Australia was asked to consider making writs of certiorari and mandamus 11 and 15 months out of time, respectively. The Court refused to grant the application, stating that the case would need to be ‘exceptional’ before the time for commencing proceedings was enlarged by many, many months.
It is of significance that in Marks, the Court found that the extent of the delay itself was sufficient to dispose of the application. At paragraph [16], McHugh J stated:
Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.
The application pleads 3 proposed grounds of review, being:
1.I was not given fair chance
2.There was judicial error in my AAT decision
3.I want to apply federal circuit court on the basis of judicial error made by AAT
The applicant did not file and serve written submissions, any amended application with proper particulars of the grounds of the application and any additional evidence on which he seeks to rely, notwithstanding being given the opportunity to do so by way of orders made on 6 September 2024.
Consistent with Colvin J in DQQ17 v Minister for Immigration and Border Protection[3] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[4], the consequences of failing to particularise a ground depend on the circumstances. It will rarely be appropriate to dismiss an appeal or a review ground in a migration case for lack of particularisation where the applicant applies for relief arising out of an application for a protection visa and the person is self-represented. It is ordinarily appropriate for the person to be afforded an opportunity to explain orally the matters that they say go to the grounds of review.
[3] [2018] FCA 784.
[4] [2023] FCA 384.
With these authorities in mind, and as the applicant was self-represented, I asked him to expand upon the proposed grounds of review, including to give particulars, to assist me to understand the errors that he was asking me to consider.
I set out for the applicant some commonly recognised categories of jurisdictional error. I also explained the limitations of the court’s jurisdiction, that the court is not permitted to conduct a merits review of the Tribunal’s decision, and that the court did not have the power to grant him a protection visa.
The applicant made general statements that he needed more time to think, and he could provide answers in writing to the questions he was being asked. He said that his brain was not working. I note the applicant made a similar submission to both the delegate and the Tribunal.
In any event, the applicant said that he could not remember why he alleged that the Tribunal did not provide him procedural fairness, and nor was he able to expand upon how the process was not fair.
The applicant said that he has paid his taxes in Australia, has fed poor people, and has no Australian criminal record. When he was asked what jurisdictional error he was alleging in the general statement at proposed Ground 2, the applicant said that he should be given more time to think and write. I gave the applicant the opportunity to file and serve any written submissions in relation to his proposed grounds of review by 13 February 2025, but he did not file any submissions.
Further, as to the grounds of his application for extension of time, the applicant explained that when he submitted the application, the website was very busy. He said that he tried many times to submit the application, and he referred to a screenshot of an error message he received, indicating the website was under maintenance.
The applicant did not lead evidence of these matters. I also gave the applicant 14 days after the hearing to file and serve an affidavit in support of his application for extension of time, including setting out why he was not able to file it within time and attaching any documents, however he has not given any further evidence. In the circumstances, I am unable to find that the applicant’s explanation for the delay is adequate.
The Minister accepts that the delay is minor, and the length of the delay is short. Noting that the mere absence of prejudice to a respondent does not justify the exercise of the discretion to extend time in and of itself, the Minister accepted there is no prejudice in an extension apart from the public interest in the finality of administrative decisions.
The Minister made submissions that the proposed grounds lacked merit. I have assessed the merits of the applicant’s proposed grounds of review at a reasonably impressionistic level, and am not satisfied that he has a sufficiently arguable case.
Proposed Ground 1 alleges a denial of procedural fairness. It is not particularised, and the applicant was not able to say how the process was unfair, either at the hearing, nor in writing after the hearing.
The Tribunal found that a significant part of the applicant’s evidence and claims were not credible, and that he was not a truthful witness. It found that his responses at the hearing appeared rehearsed or evasive, and it formed the view that he had largely concocted his claims.
This finding was based on several reasons including a comparison of the evidence in the applicant’s written claims and those made in evidence at the hearing and serious inconsistencies in his evidence, the Tribunal finding that the claims and assertions made at the hearing are unsupported speculation.
Notwithstanding these findings and the Tribunal’s credibility assessment, the Tribunal accepted, in assessing the applicant’s claims at their highest, that he was involved in a dispute and a fight with his neighbours who lived across the street from him at his home. The Tribunal also accepted that as a result of the dispute and the fight, which occurred sometime in around 2005 to 2007, his neighbour fell and sustained a neck injury. The Tribunal accepted that the neighbour was admitted to hospital but died within a short time of being admitted, and that the applicant was detained by Police the following day and was thereafter held in custody for some 3 to 6 months before being released.
However, considering all of the evidence, the Tribunal did not find that the applicant was a person who is wanted by the Police in India in relation to the death, or for any other reason. The Tribunal did not consider that the evidence demonstrates, or even suggests that the applicant faces arrest or any risk of harm by authorities in India if he returns now or in the reasonably foreseeable future as a result of the neighbour’s death or for any other reason.
The Tribunal rejected the applicant’s primary claim, to fear harm from his neighbour’s sons, noting that even if his neighbour’s sons continue to be angry over their father’s death, and even if they continue to hold the view that the applicant was responsible for it, their past conduct is inconsistent with the conclusion that they hold a genuine intention to cause him serious harm or death, as he was able to return and live in his home after he was freed from jail, over the road from them.
I have considered the material and do not find any basis that procedural fairness was not provided to the applicant. The applicant was given the opportunity to meaningfully present his case. He was provided with an interpreter at the Tribunal hearing, which lasted for over 2 hours. He was put on notice of determinative issues for the Tribunal in its questions and consideration of his answers at the hearing, particularly as those matters went to the Tribunal’s concerns about his credibility.
The Tribunal put its concerns to the applicant, including asking him about documents that were inconsistent with the evidence that he gave to the Tribunal for the first time at the hearing. He was asked to explain inconsistencies and elaborate on his evidence in a manner that enabled his claims to be put in a real and meaningful way.
I do not consider that the applicant has a sufficiently arguable case in relation to proposed Ground 1.
Proposed Grounds 2 and 3 make a broad allegation of jurisdictional error, and the applicant has not complied with the orders providing him with an opportunity to particularise these proposed grounds.
Whilst in general terms, an applicant has the onus of establishing jurisdictional error, I have considered the Tribunal’s decision more broadly. I do not consider that there is any jurisdictional error evident in the Tribunal’s decision or reasons.
Proposed Grounds 2 and 3 are not sufficiently arguable.
In the circumstances, and taking into account the length of the delay, the explanation for the delay, prejudice and the merits of the proposed grounds, I am not satisfied that it is in the interests of the administration of justice to make an order extending the time for the applicant to file the application.
I dismiss the application for extension of time, and I dismiss the application filed on 1 July 2024.
I will hear the parties as to costs if necessary.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris. Associate:
Dated: 6 March 2025
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