EPD18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 674
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EPD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 674
File number: MLG 2666 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 1 August 2023 Catchwords: MIGRATION – application for extension of time to seek judicial review of Tribunal decision – significant delay – no adequate explanation for delay – no prejudice to respondent – no realistic prospects of success in judicial review application – extension of time refused Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 477
Federal Circuit Court Rules 2001 (Cth) r 44.05
Cases cited: AWX16 v Minister for Immigration and Border Protection [2016] FCCA 928
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs[2006] FCA 702
SZQRU v Minister for Immigration & Citizenship[2012] FCA 1234
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284
SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319
SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of last submission: 12 July 2023 Date of hearing: 29 June 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms S Roeger Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2666 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EPD18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
1 August 2023
THE COURT ORDERS THAT:
1.The application for an extension of time is 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 LADHAMS:
INTRODUCTION
The applicant is a citizen of India who applied for a protection visa. A delegate of the Minister made a decision not to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on 20 January 2017. The applicant did not make an application for judicial review of the Tribunal decision within the time frame prescribed by s 477(1) of the Migration Act 1958 (Cth) (Migration Act) and he now seeks an extension of time for judicial review of the Tribunal decision.
For the reasons explained below, taking into account the delay of more than 18 months in filing the application, the inadequate explanation for that delay and the lack of merit in the proposed judicial review application, I do not consider that it is in the interests of the administration of justice to grant the extension of time. The application to this Court is therefore dismissed.
APPLICATION FOR PROTECTION VISA AND DECISIONS RELATING TO THAT APPLICATION
The applicant arrived in Australia in early 2015 as the holder of a tourist visa. He applied for a protection visa on 5 February 2015.
On 30 October 2015 a delegate of the Minister made a decision not to grant the applicant a protection visa.
The applicant applied to the Tribunal for merits review of the delegate’s decision on 19 November 2015.
On 31 October 2016 the applicant attended a hearing before the Tribunal to give evidence and present arguments in relation to his claims for protection. He was given an opportunity after the hearing to provide additional submissions and evidence, which he did via his representative.
On 20 January 2017 the Tribunal affirmed the delegate’s decision.
SUMMARY OF TRIBUNAL DECISION
The Tribunal did not accept the applicant’s claims that:
(a)he feared persecution because he was a Sikh and was committed to maintaining ‘peace’ in his village, which caused him to oppose all militant activities and opposed militant demands for a separatist Sikh state; and
(b)he had been continuously persecuted by local authorities and militants since his early years because he was by his father’s side during the mid-1980s and 1990s when Punjab was engulfed in intercommunal strife and rocked by political unrest.
While the Tribunal accepted that Punjab’s disturbed history might have caused the applicant and his father to fear for their wellbeing and lives, the Tribunal relied on country information to find that the circumstances in Punjab today are very different. The Tribunal found that the applicant was not a Sikh political activist or a known supporter for a separatist Sikh state and was only interested in his village’s collective welfare. Based on this, the Tribunal did not accept that the applicant was a person of continuous interest to the authorities as he claimed or that he was detained and tortured by the local authorities in 2011.
The Tribunal also considered that the applicant’s previous ability to travel overseas and to relocate internally within India on one occasion indicated that the applicant was not in any way a person of interest to the authorities due to his Sikh religion or for any political opinion he might hold or have expressed or which might be imputed to him because of his father’s past activities as a Sikh elder of his village.
The Tribunal noted the applicant’s attempts to relocate overseas and within India for short periods followed by much longer periods during which the applicant returned to his home village and did not accept as credible the applicant’s reasons for leaving his village for other safer destinations. The Tribunal considered that the applicant’s actions of leaving for only brief periods of time and always returning to his village to stay for considerably longer periods did not reflect not the experiences of an individual that had experienced torture, harassment on a continual basis by state authorities and militant thuggery and who yearned to escape it all for a better life.
The Tribunal did not accept the applicant’s evidence about his fears concerning ongoing torture, persecution and harassment due to his Sikh religion and political opinions, or that he would face any harm based on this, his father’s political opinion and for resisting Sikh militants.
Based on its factual findings, the Tribunal did not accept that the applicant met the criteria for a protection visa in s 36(2)(a) or (aa) of the Migration Act.
APPLICATION FOR AN EXTENSION OF TIME
In his application to this Court, the applicant sought an extension of time and set out the following grounds in relation to the application for an extension:
1.My original representative was Mr Harold Jones of Sabelberg Marcos Lawyers who passed away in August 2016
2.His replacement did not advise me that I could appeal the decision of the Tribunal
3.I was advised to apply for another visa and then seek Ministerial Intervention. I now realise that I should have applied for Judicial Review before doing anything else.
The application also set out the proposed grounds of judicial review:
1.The Tribunal erred in applying the legal test for who is owed protection obligations
2.The Tribunal erred in applying the obligations and criterion set out in the Refugee protocol and Refugee Convention
3.The Tribunal erred in determining the complementary protection criteria
4.The Tribunal failed to engage with the evidence and claims advanced
5.The Tribunal failed to properly apply the relevant law and consider the evidence and claims made.
The applicant filed with his application an affidavit which annexed a copy of the Tribunal decision and in which the applicant deposed that the Tribunal did not accord him procedural fairness and that the Tribunal decision was unreasonable. The applicant was also given an opportunity to give evidence relevant to his extension of time application at the hearing, and with the leave of the Court, he also filed a further affidavit after the hearing.
Relevant considerations in deciding whether to grant an extension of time
Section 477(2) of the Migration Act allows the Court to extend the time within which the applicant may file an application for judicial review of the Tribunal’s decision if the applicant makes an application for an extension of time in writing and if the Court considers that it is necessary in the interests of the administration of justice to grant the extension of time.
The factors that the Court can take into consideration in deciding whether it is necessary in the interests of the administration of justice to grant the extension of time are not prescribed, but the Court will usually take into account considerations such as the length of the delay, whether there is an adequate explanation for the delay, any prejudice to the Minister and the merits of the proposed substantive application: see, for example, SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 at [46]-[48].
Length of the delay
The Tribunal decision in this matter was made on 20 January 2017. The time frame prescribed by s 477(1) of the Migration Act for making an application for judicial review is 35 days from the day on which the Tribunal decision was made. Therefore, to make a valid application for judicial review within the prescribed time frame, the applicant needed to file his application on or before 24 February 2017. The applicant did not file his application until 5 September 2018, over 18 months outside of the time frame prescribed by s 477(1) of the Migration Act. This is an excessive delay.
Reasons for the delay
At the hearing, the applicant gave oral evidence to explain the delay.
The applicant’s evidence was that he was assisted with his visa application by a particular person, but that person then passed away and his file was reallocated to another person within the same legal practice. After his file was transferred to a third person, they charged him a fee and then lodged his application. The applicant’s matter had been passed from person to person within the law firm and this was quite upsetting for him psychologically. He felt that he was not properly consulted and then his protection visa application was lodged. The applicant said that he asked his representative to attach medical information as he was mentally upset at that time. He asked his third representative to apply for a protection visa but they applied for a medical treatment visa instead and as a result of that, the applicant was given 30 days to either apply for a job or leave the country. He approached his representative again and was asked to pay a third lot of fees to apply for a visa. The applicant then moved to Shepparton and was homeless. He stayed in Shepparton for approximately 18 months where he was supported by a religious institution and suffered severe depression for which underwent medical treatment during that time. Eventually, someone contacted his sister and informed her of his circumstances and she came to collect him and arranged for his application to the Court to be lodged. His sister also experienced depression and suffered domestic problems at that time.
It is unclear from this evidence exactly which applications the applicant is referring to and during what time frame these events occurred. The applicant referred to receiving a notice for 30 days, by which I infer that he received a notice that he was required to depart Australia within 30 days, but it was not clear from his examination in chief or his cross examination whether it was the receipt of this notice that prompted him to apply to this Court for an extension of time.
In his affidavit evidence filed after the hearing, the applicant indicated that after the Tribunal rejected his review application on 20 January 2017, he asked his representative about the next steps and was advised that the next step is Ministerial Intervention. The applicant deposed that a request for Ministerial Intervention was lodged by his lawyer on 17 February 2017 and was finalised on 23 February 2017, with the applicant being advised that his matter would not be referred to the Minister. The applicant also deposed that his third representative suggested that he apply for a medical treatment visa and an application for this type of visa was lodged on 11 May 2017 and the application was refused on 16 May 2017. The applicant deposed:
I then spoke to this third representative and expressed my concern around review platforms for my Refugee visa on what can be done, as I have little knowledge of the legal system of Australia and believed in the lawyers, the lawyer advised for me to pay another lump sum for them to look into my case again and apply for a review for my protection visa, I didn’t have any funds left at that stage, I was mentally depressed, I didn’t know what to do. I didn’t want to be a burden on my sister she was suffering from domestic violence herself and issues with her husband, so I left for Shepperton and was homeless for a while, I temporarily resided at the Sikh temple in Shepparton from approximately late May 2017 to August 2018, when I left from Melbourne I had very little funds with me, I did not have money to purchase my depression medication so I stopped taking my medication which made my situation worse. I did not have Medicare, seeing a doctor would cost me $70 just to get a prescription which I couldn’t afford as I was homeless myself with no funds so I stopped my medication.
I was mentally not aware of anything I was doing and my decisions in life as I was severely depressed. In August 2018 my sister found me and brought me back to Melbourne, she took me to a lawyer who assisted with an application for an extension of time to review my case, she then took me to the immigration office to have my visa granted to remain within the country until my extension of time case is reviewed.
The applicant also annexed documentary evidence to his affidavit, including:
(a)a letter from a medical practice indicating that the applicant was first prescribed medication for depression on 5 May 2017;
(b)a letter from another medical practice indicating that the applicant is a regular patient, who has been suffering from depression for a few years and has been on regular antidepressant treatment from that clinic since 2020;
(c)a letter from a Sikh association in Shepparton confirming that the applicant resided at the association between May 2017 and August 2018 because he was homeless and did not have another place to reside, and that he was distressed and anxious during that time;
(d)various bridging visa grant notices;
(e)a notification sent from the Department on 16 May 2017 advising the applicant that his application for a medical treatment visa had been refused; and
(f)an application for Ministerial Intervention under s 417 of the Migration Act dated 17 February 2017 and a letter from the Department dated 23 February 2017 advising that the request had been finalised without being referred to the Minister.
I do not accept that the evidence and explanation provided by the applicant amounts to an adequate explanation for a delay of 18 months in seeking judicial review of the Tribunal decision.
The applicant chose to pursue other options to allow him to remain in Australia, such as making an application for Ministerial Intervention and applying for a medical treatment visa, rather than pursuing a judicial review application. This was a choice made by the applicant and does not amount to an adequate explanation for not making a judicial review application within the prescribed time frame: see, for example, MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426 at [4].
Further, the applicant was advised of the outcome of his request for Ministerial Intervention prior to the expiration of the 35 day period prescribed by s 477(1) of the Migration Act for seeking judicial review of the Tribunal decision. The making of the request for Ministerial Intervention in no way explains why the application for judicial review was filed 18 months out of time.
Likewise, the applicant’s choice to then make an application for a medical treatment visa almost four months after the Tribunal decision in relation to his protection visa application was a forensic choice made by him and his legal representative. It does not explain in any way why he did not seek judicial review of the Tribunal decision within the prescribed time frame and it does not amount to an adequate explanation for the delay in this matter.
The applicant’s residence at the Sikh association in Shepparton from May 2017 to August 2018 also does not amount to an adequate explanation for the delay. The applicant has offered no explanation, aside from his mental health concerns, as to why he could not pursue a judicial review application during the period that he lived in Shepparton. The medical evidence provided by the applicant is insufficient to establish that he was unable to file an application to this Court due to medical reasons during this time. In this regard, I note that the evidence does not suggest that the applicant lacked capacity or was unable for any reason to make a judicial review application: see, for example, AWX16 v Minister for Immigration and Border Protection [2016] FCCA 928 at [45(e)]. Rather, at its highest, the medical evidence suggests that the applicant had been diagnosed with depression and was receiving treatment for it during this time.
Further, the suggestion in the applicant’s affidavit that he did not have the money to instruct his lawyer to further review his protection visa matter in or about May 2017 does not amount to an adequate explanation for the delay in this matter. There is no right to legal representation in migration proceedings, nor is there any right to free legal advice: SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs[2006] FCA 702 at [4] per Gyles J; SZQRU v Minister for Immigration & Citizenship[2012] FCA 1234 at [24] per Katzmann J. Therefore, any inability to pay his lawyer to review his case cannot amount to an adequate explanation for the delay.
The lack of any adequate explanation for such a lengthy delay weighs against the grant of the extension of time.
Prejudice to the Minister
The Minister has not claimed that he would face any prejudice as a result of the delay and I am satisfied that there is no substantive prejudice to the Minister as a result of the delay. However, absence of prejudice alone does not warrant the grant of an extension of time.
Merits of the proposed substantive application
In considering whether or not an extension of time should be granted, the Court will often consider the merits of the proposed judicial review application at a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [62]-[63]. However, the Court is not required to confine its consideration of the merits to an assessment at a reasonably impressionistic level: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28 [17]-[19] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [49] (Gordon, Edelman and Steward JJ).
It is well accepted that it is generally not in the interests of the administration of justice to grant an extension of time where the proposed substantive application has no realistic prospects of success: SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]; SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 at [39].
The applicant has set out five grounds in his written application and raised further allegations of jurisdictional error in his affidavit that accompanied his original application. I explained to the applicant at the hearing that there was not enough detail in the grounds to enable the Court and the Minister to properly understand the jurisdictional error that the applicant was asserting by the grounds. The applicant confirmed that he understood the need to provide further detail and he was given an opportunity take time to consider what he wished to say and to provide additional detail at the hearing.
I have taken into account the applicant’s submissions at the hearing and I do not rely on the lack of particularisation to find that the grounds have no prospect of success. Rather, I have endeavoured to understand the grounds in a way that is beneficial to the applicant. Notwithstanding this beneficial consideration of the applicant’s grounds, I have reached the view that the applicant’s grounds do not disclose that he has any realistic prospect of success in relation to his proposed judicial review application.
Grounds 1, 2, 3 and 5 of the application assert that the Tribunal did not properly apply the relevant legal tests in assessing the applicant’s claims for protection.
The Tribunal correctly identified the criteria for the grant of a protection visa at [5]-[9] of its reasons. In these paragraphs, the Tribunal identified that the applicant must meet the refugee criterion in s 36(2)(a) of the Migration Act, the complementary protection criterion in s 36(2)(aa) or the criteria in s 36(2)(b) or (c) as a person who is the member of the same family unit as a person who meets the criteria in s 36(2)(a) or (aa) and holds a protection visa of the same class. The Tribunal also acknowledged the definitions relevant to whether a person meets the refugee criterion as set out in ss 5H and 5J of the Migration Act, and, relevant to the complementary protection assessment, the Tribunal acknowledged the definitions of ‘significant harm’ and the circumstances where a person is taken not to face a real risk of significant harm as set out in s 36(2A) and (2B) of the Migration Act.
The Tribunal carefully considered the applicant’s claims for protection against the relevant criteria in the Migration Act. As can be seen from the summary of the Tribunal decision above, the Tribunal did not accept that the applicant was of adverse interest to the Indian authorities or that there was a real chance that he would face serious harm in the reasonably foreseeable future for the reasons he claimed. In making its findings, the Tribunal was not required to uncritically accept the applicant’s claims. The Tribunal provided detailed reasons to explain why it rejected the applicant’s claims in relation to the refugee criterion. The Tribunal then relied on the same findings of fact in finding that the applicant did not meet the complementary protection criterion. In the circumstances of this case, where there were no separate claims for complementary protection that were not also advanced in relation to the refugee criterion, and where the findings of fact made by the Tribunal effectively disposed of the applicant’s complementary protection claims, the Tribunal’s approach was open to it.
To the extent that the applicant by ground 2 asserts that the Tribunal erred in applying the Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967, the ground cannot succeed. This is because Australia’s protection obligations are now codified in the Migration Act and in determining whether the applicant met the refugee criterion, the Tribunal was required to have regard to the definitions in ss 5H and 5J of the Migration Act rather than directly applying the Convention or Protocol.
Taking into account the applicant’s oral submissions to the Court, it would appear that in many ways, the applicant’s real complaint relevant to these grounds is that the Tribunal did not find that he met the criteria for a protection visa. To the extent that this invites the Court to review the merits of the Tribunal decision, it is beyond the jurisdiction of the Court and therefore cannot establish jurisdictional error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31]. I have not identified anything on the face of the Tribunal reasons to suggest that it did not properly apply the relevant law that it identified early in its decision, in finding that the applicant did not meet the criteria for a protection visa. The applicant has no reasonable prospects of success in relation to these grounds.
In grounds 4 and 5, the applicant asserts that the Tribunal did not properly consider the evidence before it. The applicant has not identified in his written application any particular piece of evidence that was before the Tribunal but which was not considered by the Tribunal.
At the hearing, the applicant submitted that he gave photos to his lawyer as evidence of his injury. However, it does not appear that those photos were ever provided to the Tribunal. If the photos were not provided to the Tribunal, they were not in evidence before the Tribunal, and the Tribunal cannot be expected to have regard to evidence that is not before it. There are no realistic prospects of the applicant being able to establish jurisdictional error on the basis that the Tribunal did not consider evidence that was not before it.
The applicant also submitted at the hearing that the Tribunal looked at the situation in India overall, but did not specifically look at the situation in his case and his village. I do not accept that the applicant has any realistic prospect of establishing jurisdictional error on this basis. The Tribunal carefully considered the submissions advanced on behalf of the applicant by his representative and the country information cited in those submissions. The Tribunal considered country information that addressed the situation within Punjab and the situation facing Sikhs in India more generally. The Tribunal also considered the applicant’s specific allegations of past harm but did not accept that the applicant had been harmed in the way that he claimed. This was based on country information and the evidence of the applicant in relation to his own circumstances.
Having regard to the information that was before the Tribunal, which was comprehensively summarised by the Tribunal in its reasons, there is no basis for finding that the Tribunal did not take into account the information submitted by the applicant, including that in relation to the situation in Punjab and his home village. Taking into account the whole of the information before it, it was open to the Tribunal to place weight on the country information and the applicant’s evidence regarding his own circumstances in the manner that it did and to reach the conclusions that it did. Having reviewed the material before the Court, I am unable to identify any claim or evidence that the applicant advanced before the Tribunal but which the Tribunal did not consider. Therefore, there are no realistic prospects that grounds 4 and 5 might establish jurisdictional error.
In his affidavit filed on 5 September 2018, the applicant also asserted that the Tribunal did not afford him procedural fairness and that the Tribunal decision was unreasonable. I gave the applicant an opportunity to explain each of these assertions at the hearing. The applicant submitted that the reason he believes he was denied procedural fairness was because the Tribunal did not update his case because it did not look at the proper evidence, and that he considers the Tribunal decision was unreasonable because all of the evidence was not considered.
In this way, the matters raised in the applicant’s affidavit overlap with the issues addressed above in relation to grounds 4 and 5. The Tribunal had regard to the various information and evidence submitted by the applicant both before and after the Tribunal hearing. It does not amount to a denial of procedural fairness or unreasonableness for the Tribunal not to have regard to any evidence, such as the photograph referred to by the applicant, that was not before it. Likewise, as discussed above, I am satisfied that the Tribunal did have regard to the country information submitted by the applicant’s representative as well as the other material provided to it. The Tribunal has given an evident and intelligible justification for making the findings that it did and there is no basis for saying that the decision is unreasonable. While a different decision-maker might have reached a different decision, it cannot be said that the conclusion or the process of reasoning adopted by the Tribunal was one that was not open on the evidence before it or which no rational and logical decision-maker could have made: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135] (Crennan and Bell JJ). The matters raised in the applicant’s affidavit do not give rise to realistic prospects of the applicant being able to establish jurisdictional error in the Tribunal decision.
The absence of any realistic prospects of the applicant being able to establish jurisdictional error in the Tribunal decision is a matter that weighs heavily against the grant of an extension of time.
CONCLUSION ON THE EXTENSION OF TIME APPLICATION
Taking into account the relevant factors, I find that the lengthy delay in seeking judicial review, the inadequate explanation for such a lengthy delay and the lack of merit in the proposed judicial review application weigh against the grant of an extension of time. I am not satisfied that it is necessary in the interests of the administration of justice to grant the extension of time and the application for an extension of time is therefore refused.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 1 August 2023
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