Elx18 v Minister for Home Affairs
[2019] FCCA 2925
•14 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELX18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2925 |
| Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – application out of time – whether an extension of time should be granted – no explanation for delay – insufficient merit as Application amounted to an impermissible merits review – application for extension of time refused – application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 473CB, 473JB, 476(2), 477 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 |
| Applicant: | ELX18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 453 of 2018 |
| Judgment of: | Judge Kemp |
| Hearing date: | 14 October 2019 |
| Date of Last Submission: | 14 October 2019 |
| Delivered at: | Perth |
| Delivered on: | 14 October 2019 |
REPRESENTATION
| Applicant in person (no appearance at the hearing) |
| Solicitors for the Respondent: | Sparke Helmore |
THE COURT ORDERS THAT
Leave be granted to the First Respondent to have its title amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant’s Application for an extension of time to commence proceedings in this Court out of time is refused.
The Applicant’s Application filed 22 August 2018 is, otherwise, dismissed.
The Applicant pay the First Respondent’s fixed costs assessed in the sum of $3,000.00 within three (3) months of today’s date.
The First Respondent notify the Applicant of the orders made today by advising the Applicant at his last known postal address and email address disclosed by the Applicant on his Application filed 22 August 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 453 of 2018
| ELX18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of background the Applicant is a citizen of Vietnam who arrived in Australia as an unauthorised maritime arrival on 24 August 2013. On 22 September 2016, the Department of Home Affairs (“the Department”) notified the Applicant that the bar pursuant to s.46A of the Migration Act 1958 (Cth) (“the Act”) had been lifted and invited the Applicant to apply for a Temporary Protection Visa (subclass 485) visa or a Safe Haven Enterprise Visa (Class EX) (subclass 790) visa (“SHEV”).
On 1 September 2017, the Applicant applied for a SHEV.
On 5 April 2018, the Applicant attended an interview before the Delegate of the First Respondent (“the Delegate”) with respect to his SHEV.
On 9 April 2018, the Delegate refused to grant the Applicant a SHEV.
The matter was referred to the Immigration Assessment Authority (“the IAA”) for review on 12 April 2018. The IAA affirmed the Delegate’s decision on 29 May 2018.
On 22 August 2018, the Applicant sought in this Court, in essence, a review of the decision of the IAA and applied for an extension of time to do so. A declaration was sought that the decision of the IAA was not made in accordance with law by reason of the grounds set out in the Applicant’s application which stated:
I think the decision maker did not consider all of the evidence or did not take into account relevant considerations.
The Applicant’s ground for an extension of time is as also set out in his Application filed 22 August 2018, as follows:
The [IAA’s] decision was not sent to the Applicant’s lawyer who was on the record with the Department of Home Affairs as agent for the Applicant.
The Applicant swore an affidavit on 16 August 2018 filed 22 August 2018 in support of his extension of time application. That affidavit, simply, stated:
I would like to apply for review of the decision of the [IAA]. A copy of this decision is attached.
It should be noted that the decision which was attached had the word “COPY” emblazoned on each page.
On the 10 October 2018, the Applicant and a solicitor for the First Respondent appeared before the Court and consented to various orders/directions. Those orders/directions were as follows:
1. By 4:00pm on 7 November 2018, the First Respondent shall file and serve a bundle of relevant documents (green book) in an electronic form and for that purpose, the document shall:
a. be in portable document format (PDF);
b. be capable of being searchable for specified text;
c. have an index and shall be paginated;
d. have each entry in the index bookmarked; and
e. be set so that when opened:
i. it shall display at 100% zoom; and
ii. the bookmarks menu shall be displayed.
2. By 4:00pm on 5 December 2018, the Applicant shall file and serve any amended application upon which the Applicant intends to rely, giving complete particulars of each ground of review.
3. By 4:00pm on 5 December 2018, the Applicant shall file and serve any affidavit containing any additional evidence upon which the Applicant proposes to rely relevant only to the grounds of review.
4. By 4:00pm on 16 January 2019, the First Respondent shall file and serve any affidavit upon which it proposes to rely.
5. By 4:00pm 35 days prior to the hearing, the Applicant shall file and serve written submissions in support of the application for review.
6. By 4:00pm 21 days prior to the hearing, the First Respondent shall file and serve written submissions in respect of the First Respondent’s response to the application for review.
7. The application be listed for final hearing before a judge on 14 October 2019 at 10:15am in the Federal Circuit Court of Australia sitting at Perth.
8. Liberty to either party to apply to the Court for a listing for further directions. The other party must be given 3 days’ clear notice of the time, date and place of that listing.
The Court notes that it received no amended application from the Applicant, nor any further affidavit as referred to in Orders 2 and 3, as set out in paragraph 10 above. Nor did it receive any written submissions in accordance with Order 5. The Court, however, received the First Respondent’s written submissions. No liberty to apply was exercised by any party.
The Court is satisfied, given that the Applicant appeared on 10 October 2018 [see Exhibit “Court 1”] and signed the form of the above consent orders that he was aware of today’s date and, accordingly, the matter will proceed in his absence.
Further, the Court is satisfied in terms of its receipt of Exhibit “1” that the First Respondent had through its lawyers advised the Applicant by email and express post on 18 September 2019 of the hearing date of 14 October 2019 and provided him with a copy of the First Respondent’s submissions and, therefore, the Applicant was also made aware of the hearing date through that communication.
The Applicant had available the benefit of an interpreter in the Vietnamese language who attended being Ms Thu Ha Nguyen. Ms Nguyen remained through the hearing. The Applicant, however, failed to appear.
Ms E. Tattersall appeared for the First Respondent. The Second Respondent had filed a consenting appearance on 27 September 2018. Ms Tattersall sought leave for the title of the First Respondent to be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”. Leave was granted.
Ms Tattersall also sought that the Applicant’s application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“the Rules”), on the basis that the Applicant was absent.
The Court raised with Ms Tattersall whether it should also proceed with the hearing generally or in relation to any claim for relief (noting the Applicant’s Application for an extension of time) pursuant to r.13.03C(1)(e) of Rules. Ms Tattersall was content with that course.
Accordingly, given the absence of the Applicant, his Application is dismissed including his Application for an extension of time in which to bring his application.
The Court, however, also goes on to consider the Applicant’s Application in terms of r.13.03C(1)(e) of the Rules.
The Court has received, as Exhibit “Court 2”, the Court Book and references to it herein will be “CB page number”.
Extension of time
The Court accepts that the Applicant’s Application for Judicial Review it out of time. His Application had to be lodged within 35 days of the date of the Migration decision, in this case the decision of the IAA pursuant to s.477(3)(ca) of the Act. The decision of the IAA was dated 29 May 2018. The 35 day time limit would have expired around 3 July 2018 and given the Applicant’s Application was lodged on 22 August 2018, his application was 50 days late. That position was confirmed by the First Respondent. Accordingly, without an extension of time, the Applicant’s Application is incompetent. The First Respondent opposes any application for an extension of time.
In considering an extension of time with respect to an Application for Judicial Review, the Court must have regard to ss. 477(1) and (2) of the Act. Sections 477(1) and (2) read as follows:
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court 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 Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
Rule 44.05(2)(c) of the Rules requires that an order for an extension of time be accompanied by an affidavit in support showing why it is necessary for the Court to grant an extension. Rule 44.05(2)(c) reads as follows:
(c) if an extension of time is sought--the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
The Applicant’s affidavit filed 22 August 2018, as referred to in paragraph 8 above provided no such explanation for the delay. Nor did it provide any reason or basis why it was in the interests of the administration of justice for the Court to grant such an extension. The Court accepts the submissions of the First Respondent that the Applicant has, therefore, failed to file a supporting affidavit as required under the Rules. Further, no reason has been shown why the Court would, otherwise, dispense with the prescribed criteria pursuant to r.1.06(1) of the Rules, in any event.
Further, the Court must consider the relevant principles in relation to an extension of time application. In that regard the Court has considered the extent of the delay, being some 50 days. There is no explanation for that delay, which the Court accepts is unsatisfactory. The First Respondent, however, has identified no particular prejudice in relation to that delay. Finally, the Court must consider the merits of the proposed appeal.
The Court accepts the submission of the First Respondent that whilst the Applicant was represented before the Delegate (CB 27-30) there is no record of the Applicant appointing an authorised recipient before the IAA pursuant to s.473HG of the Act, nor is there any evidence of an agent taking steps on his behalf (such as, for example, filing written submissions) during the review by the IAA. The IAA, therefore, notified the Applicant of its decision in accordance with the requirements of the Act (CB 50, 103). In this regard, the Court notes that the Applicant was put on notice in terms of the Delegate’s decision dated 9 April 2018 that the First Respondent had referred the decision to the IAA and that there were various matters which the Applicant would need to do in terms of that review. Those matters are as set out at CB 88 and include the following:
If you would like another person to receive documents from the IAA on your behalf (known as an authorised recipient), you must provide that person’s name and address to the IAA in writing. You must do this even if you had an authorised recipient for your application with the Department and want the same person to continue to receive documents on your behalf. Use form F2 – Appointment of Representative / Appointment of Authorised Recipient, available atwww.iaa.gov.au/guidance-forms/forms.
The Court received, as Exhibit “Court 3” a copy of the relevant Form 2 (F2). Interestingly, there is no Form 1 (F1). These forms appear on the IAA’s website. The use of such forms would appear to be an implementation of s.473JB of the Act whereby the President and Division Head are responsible for the overall operation and administration of the IAA and for that purpose may issue directions or determine policies, in that regard.
The Court is satisfied that the Applicant, through his registered migration agent, being Yung Tri Nguyen, was advised of the contents of the Delegate’s decision and, in particular, the matters set out in paragraph 26 above. The First Respondent confirmed that there had been no documents received from the Applicant in terms of any compliance with the matters set out in paragraph 26 above. Accordingly, the First Respondent submitted, and the Court accepted, that the decision of the IAA was to be communicated to the Applicant, himself.
Finally, the Court must consider whether the Applicant’s Application has sufficient merit to make it necessary in the interests of justice to extend time.
The Court has had regard to the decision of Justice Mortimer in MZABP v Minister for Immigration and Border Protection and Others (2015) 242 FCR 585 at [597], where it was stated:
As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27 ; 195 CLR 516 at [7]–[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
The Court accepts that the grounds for the Applicant’s Application, as set out in paragraph 6 above, are not sufficiently particularised to be meaningful and should fail on that basis alone. The Court, further, accepts the submission of the First Respondent that whilst considerable latitude may be extended to a self-represented litigant such as the Applicant, particularly, when interpreting grounds of appeal, it is not for the Court to scrutinise the IAA’s decision to identify errors that the Applicant has made no real attempt to articulate: Sadyal v Minister for Home Affairs [2019] FCA 1462 at [22]-[23].
Further, the Court notes that while the Applicant’s Application also suggested that he wished to challenge the Delegate’s decision, this Court has no jurisdiction to review that decision: s.476(2) of the Act.
In further consideration of the merits of the Applicant’s claim, the Court notes that his claims as set out in his SHEV application (CB 65-67) can be summarised, as they were by the First Respondent, as follows:
a)He saw the authorities threaten and beat many people and left Vietnam as he did not want to live under an authoritarian and communist regime; and
b)He would be classed as a counter-revolutionary and imprisoned on return as a result of his illegal departure. He would be unsafe throughout the country as his movements would be tracked through the national ID system.
The Applicant also expanded upon his claims at the interview with the Delegate on 5 April 2018, as summarised by the First Respondent, as follows (CB 92-93):
a)He did not have a religion but had attended Church services on Christmas Island and since his release from detention;
b)In 2009 or 2010, he was arrested in the Czech Republic on drug related charges and spent two (2) years in prison prior to being deported; and
c)He departed Vietnam legally before entering Australia illegally.
The IAA had regard to the material given to it by the Secretary under s.473CB of the Act. No new information was obtained or received (CB 105, [2]-[3]).
The IAA accepted the Applicant’s evidence in relation to his time overseas as well as his criminal conviction, imprisonment and deportation. The IAA also accepted that he may have been apprehensive to disclose his conviction upon arrival.
The IAA, otherwise, noted that the Applicant did not claim to have suffered any discrimination in Vietnam due to his conviction (CB 106, [9]). The IAA also noted the Applicant’s evidence at the SHEV interview in relation to his religion; particularly that he was not a Catholic and had not claimed to have suffered harassment, discrimination or violence as a result of any religious beliefs in Vietnam (CB 106, [10]).
The IAA, further, accepted that the Applicant may have faced challenges in Vietnam as a consequence of corruption and that he held low-level opinions against the Vietnamese regime. The IAA was, however, not satisfied that the Applicant had any interest in expressing those opinions or becoming involved in political activism on return and, was, therefore not satisfied that he faced a real chance of serious harm on this basis (CB 107, [12]).
The IAA, further, accepted that the Applicant was affected by the 2014 data breach. The IAA, however, noted that none of the Applicant’s contact details or information about his protection claims were released and that the chance of the Vietnamese government having accessed the information released was remote. Accordingly, the IAA was not satisfied that the Applicant faced a real chance of harm on that basis (CB 107, [14]).
The IAA did not accept that the Applicant departed Vietnam illegally given his inconsistent evidence (CB 108, [15]). Having regard to country information and the Applicant’s profile, the IAA was not satisfied that the Applicant faced a real chance of harm as a returning asylum seeker (CB 108, [16]-[17]).
The IAA concluded that the Applicant did not face a real chance of persecution on return to Vietnam, nor in the reasonably foreseeable future and that he, therefore, did not meet the requirements of s.36(2)(a) of the Act for the grant of a Protection Visa because the Applicant was a refugee (CB 108, [18]-[19]).
In assessing the Applicant’s claims under the complementary protection provisions, the IAA relied on its anterior findings to conclude that the Applicant did not face a real risk of significant harm for the reasons claimed (CB 109, [22]-[23]).
The Court accepts that the Applicant has not identified what evidence he asserts was not considered by the IAA.
The Court, further, accepts that the IAA does not need to refer to every piece of evidence and every contention made by an Applicant in its written reasons. In that regard, the Court notes the following passage from the decision of the Full Court of the Federal Court of Australia (French, Sackville and Hely JJ) in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46], noting that the reference to Tribunal is equally apposite to the IAA:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
It is clear that the IAA considered the Applicant’s claims and evidence, which were, essentially, limited to his written statement and oral evidence at entry and SHEV interview and made findings that were open to it and for the reasons given by it. The Applicant’s sole ground (see paragraph 6 above) amounted to no more than a request for this Court to engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272. The Applicant’s ground being broad and without particulars is incapable of establishing a jurisdictional error. As such, the Applicant’s Application has little or no prospects of success and, accordingly, leave should not be granted for an extension of time and as such his Application should be dismissed as being incompetent.
Costs
The First Respondent sought costs in the fixed amount of $3,000.00. Given the outcome of this application, the Court is of the view the First Respondent is entitled to its costs. The amount sought was said to be less than scale. The Court accepted the amount sought as the reasonable costs of the First Respondent. The Court provided for a period of three (3) months for the Applicant to pay such costs as ordered.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 14 October 2019
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