EQL17 v Minister for Immigration
[2020] FCCA 1512
•12 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EQL17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1512 |
| Catchwords: ADMINISTRATIVE LAW – Where application to review decision of Immigration Assessment Authority dismissed for non-appearance – application under r.16.05 of the Federal Circuit Court Rules 2001 (Cth). |
| Legislation: Migration Act 1958 (Cth), s.477 Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05, 44.05 |
| Cases cited: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 |
| Applicant: | EQL17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3227 of 2017 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 4 June 2019 1 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2020 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Orders 1 and 2 made on 14 March 2019 dismissing the Applicant’s application of 18 October 2017 with costs under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 be set aside under r.16.05 of the Rules.
The application for an extension of time under s.477(2) of the Migration Act 1958 be listed for hearing on a date to be fixed and notified to the parties.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3227 of 2017
| EQL17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application under r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (the Rules) to set aside an order dismissing the Applicant’s application for review of a decision of the Immigration Assessment Authority (the Authority). The review application was dismissed at a callover on 14 March 2019 under r.13.03C(1)(c) of the Rules in circumstances where there was no appearance by the Applicant.
The Applicant, a citizen of Iraq, arrived in Australia in May 2013. In July 2016 he applied for a Temporary Protection visa (TPV).
In support of his application he claimed that in Iraq he drove a mini-van from about 1999. He claimed that in 2010 he was asked to join the Al-Sadr militia, but that he had not done so. In late 2012 he was offered an opportunity to transfer plain clothed Iraqi military personnel to an American base in Mosul in his mini-van. He claimed that in early 2013 he was again approached by the Al-Sadr militia through his brother. They wanted him to join them and to provide information about the American base in Mosul. He claimed that later in 2013 he received a death threat from Al-Sadr which suggested he was a collaborator with the Americans. He stopped working and reported this threat to the police who said they could not help. He went into hiding and then left Iraq. He claimed to the delegate that since he left Iraq the Al-Sadr militia had asked his brother about his whereabouts on ten to fifteen occasions, most recently four to five months prior to his interview with a delegate of the First Respondent.
In his interview the Applicant also claimed that in late 2012 when he approached the Al-Sadr militia about their order to turn off the electricity in his home area, he had been threatened with death.
The Applicant claimed to fear being targeted by the Al-Sadr militia (as other drivers had been) due to his imputed support for the US forces in Iraq as a result of transporting Iraqi military personnel to the military base. He also claimed to fear the general security situation in Iraq.
The application was refused by the delegate and the matter was referred to the Authority. A solicitor for the Applicant made a submission to the Authority which took issue with the delegate’s decision.
The decision of the Authority
On 3 August 2017 the Authority affirmed the decision not to grant the Applicant a protection visa.
The Authority acknowledged the risk to individuals who had worked with the US government in Iraq. It was prepared to accept that the Applicant was aware of drivers who were threatened, injured or killed by the Al-Sadr militia for transporting military personal and that the Applicant may have transported Iraqi military personnel.
However the Authority did not accept that the Applicant was asked to join the Al-Sadr militia in 2010 and 2013 or that in March 2013 the Al-Sadr militia issued a letter personally threatening to kill the Applicant for transporting plain clothed military personnel to the Mosul base. It found that the Applicant had given inconsistent and vague evidence about these claims, which he had embellished over time in an attempt to boost his profile.
The Authority had regard to the Applicant’s failure to mention the threats to him or the letter in his entry interview. It also found that he had given inconsistent evidence about when he started to make arrangements to leave Iraq. It found at paragraph 31 of its reasons that:
… his evidence about the militia’s threats was circular and nonsensical. On the one hand he said the militia wanted him to join them so he could provide them with information on the American base in Mosul. On the other hand, he said the militia were threatening him for being an American collaborator for transporting military personnel to the Mosul base.
As it did not accept that he was threatened by the Al-Sadr militia, the Authority did not accept that the Applicant went to the police, went into hiding or that his brother had been questioned about him as claimed.
Given what was said to be the absence of an explanation “as to why he had not mentioned [the 2012 death threat] in either his entry interview or TVP interview (sic)”, the Authority did not accept this claim.
The Authority was not satisfied that there was a real chance that the Applicant would be threatened, killed or otherwise face future harm from the Al-Sadr militia. While it acknowledged that country information indicated that some Shia militia carried out human rights abuses, it had regard to the fact that, because of what it saw as the Applicant’s “inconsistent evidence”, it had not accepted his claims about past threats. It also took into account the fact that he had stopped working as a driver and sold his mini-van, four years had passed since he left Iraq and there was no evidence to suggest that if the Applicant returned to Iraq he would recommence driving military personnel.
The Authority was not satisfied that the Applicant faced a real chance of serious harm or a real risk of significant harm on any other basis. It affirmed the decision not to grant him a protection visa.
Review application
The Applicant sought review of the decision of the Authority by application filed on 18 October 2017.
In his application, which the Applicant told the court was completed with the assistance of a friend, he indicated “No” in response to the question: “Does the applicant apply for an order that the time for making the application be extended under section 477 of the Migration Act 1958?”.
As the First Respondent pointed out in a response filed on 3 November 2017, the application for judicial review was not filed within 35 days of the date of the Authority’s decision. Hence an extension of time was required. At that time the Applicant had not sought an extension of time in writing as required by s.477(2) of the Migration Act 1958 (Cth) (the Act) or filed any affidavit evidence to explain the delay and show why it was necessary in the interests of the administration of justice to grant an extension of time as required under r.44.05(2)(c) of the Rules.
However when the application came before a registrar of this court for a first court date on 20 November 2017, the court made the “usual” orders, apparently by consent, on the basis that no extension of time was necessary. The orders were entered on 21 November 2017.
The registrar’s orders provided for the Applicant to file and serve any affidavit evidence by 12 February 2018. On 4 April 2018 the Applicant filed an affidavit which attached a number of documents, including a statement in the nature of a submission and evidence (including photographs) in relation to what was said to be the murder of the Applicant’s brother by the Al-Sadr militia on 10 September 2017.
The first court date directions hearing was conducted at the Law Courts Building at Queens Square, Sydney. One of the orders required that all documents in the proceedings be filed at the registry at that address. However the matter was listed for callover before me at 9.30am on 14 March 2019 in court 13.2, level 13, 80 William Street, Sydney. The time, date and place for the callover were specified in the orders.
There was no appearance by or on behalf of the Applicant at the callover on 14 March 2019. I dismissed the application pursuant to r.13.03C(1)(c) of the Rules.
Reinstatement application
On 20 March 2019 the Applicant filed an application in a case seeking reinstatement of his review application. Under the heading: “Orders sought” he stated:
1. I went to the wrong address at the date of the hearing.
2. I went to the Minister’s lawyer at the same day at 8.30am. The receptionist said everything is ok, and she took the letter from me.
3. I am requesting the court to give me another chance for hearing.
In support of his reinstatement application the Applicant filed an affidavit sworn by him on 20 March 2019 in relation to his failure to appear at the callover. His evidence was that at 8.30am on the callover date (14 March 2019) he went to the wrong address, that is, to the office of the Minister’s solicitors. He claimed that the receptionist then told him that “everything is ok and [we] will send you a letter”.
At a directions hearing on 26 March 2019 I gave the Applicant the opportunity to file and serve an amended application and any further affidavit evidence. Orders were also made for written submissions to be filed prior to the hearing of the reinstatement application.
Within the time specified for the filing of further evidence, the Applicant filed an affidavit sworn by a friend (who, having regard to s.91X of the Act, is not identified by name). The friend attested that the Applicant had asked him to accompany him to court on 14 March 2019 because of his lack of English or familiarity with how to reach the court.
The friend also attested that the Applicant gave him “the letter he received from Mills Oakley” (the solicitors for the First Respondent) and that he (the friend) thought that the hearing would be at the Clarence Street address in that letter. The friend stated that they went to that address at 8.30am on 14 March 2019, showed the letter to the receptionist and that he told her they were there because the Applicant had a hearing at 9.30am. He claimed that the receptionist took the letter, checked the computer, went “inside” and then told them everything should be “OK” and that the Applicant would receive a letter via mail. He claimed that, when asked, the receptionist confirmed that that was all the Applicant should do that day and that she had not told them that they had come to the wrong address for the hearing and had not given them the right address for the hearing.
The Applicant also filed a statement in the nature of a submission addressing concerns about the delegate’s and Authority’s decisions and attaching a copy of the statement of claims he had made in support of his TPV application. It is apparent that, in effect, he contends that he has provided a satisfactory explanation for his non-appearance and has arguable grounds of review.
The Applicant also filed an affidavit in which he provided an explanation for having submitted the supporting documents from Iraq about his brother’s death outside the time provided for in the orders made on the first court date.
When the matter came before the court for hearing of the reinstatement application, the Applicant told the court that on 30 April 2019 he had filed with the registry three CDs he had received from the Department. He had thought that the CDs would contain a record of his departmental interview. They did not. It emerged that the CDs may have been provided in answer to a Freedom of Information request. They did not contain a record of the interview that could be played in court. In addition to his concern about the murder of his brother (who was referred to in his protection claims), the Applicant expressed concern about what had or had not occurred in the interview relevant to the Authority’s decision. He claimed that the Authority had failed to take into account what in fact happened at the interview.
The hearing was adjourned to enable the solicitors for the First Respondent to provide the Applicant with a record of his departmental interview and for the Applicant to file a transcript of that interview. He was also given further leave to file and serve an amended application including an application for an extension of time under s.477 of the Act, and an affidavit in support of the application for an extension of time.
On 11 July 2019 the Applicant filed an amended application in which he applied for an extension of time, but maintained the same grounds of review as in his original application. He did not specify any grounds for the application for an extension of time in the application form itself, but in an affidavit filed on 11 July 2019 he provided an explanation for his delay in commencing these proceedings. In essence, he claimed that his then solicitor had told him that he had filed a review application in Melbourne. However he later learnt from the Department that this was not the case. He then filed his application in Sydney.
In addition, the Applicant filed an affidavit sworn by a person described as a “form worker” on 11 July 2019 which was said to contain a “certified original copy of translation” of the TPV interview of 21 February 2017 and attached the audio CD and USB that had been provided to him by the solicitors for the First Respondent.
Unfortunately, while on its face the “translation” was prepared by “Al-Furat Translation Services”, it is not a transcript. It appears to be a translation of the Arabic answers of the Applicant. It contains both Arabic and English transcriptions, but nothing said by the interviewer has been transcribed.
The First Respondent filed written submissions before the first scheduled hearing and also before the adjourned hearing. Both the Applicant and his friend were required for cross-examination. The First Respondent opposed the reinstatement application.
As the First Respondent submitted, in considering a reinstatement application a court would usually consider whether an applicant had a reasonable excuse for his or her absence from the hearing in which the proceeding was dismissed, whether there would be any prejudice to the other party if reinstatement was granted and whether the applicant’s substantive application had a reasonably arguable prospect of success on the substantive application (see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]; CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4]).
As discussed below, the First Respondent submitted that the Applicant’s explanation for non-appearance was not satisfactory. The First Respondent acknowledged that he suffered no prejudice other than costs, but made the point that the absence of prejudice to a respondent was not in itself sufficient or capable of supporting a conclusion that an order for reinstatement should be made (see Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 at 349; [1984] FCA 186 citing Lucic v Nolan (1982) 45 ALR 411 at 416; [1982] FCA 232 and Hickey & Ors v Australian Telecommunications Commission (1983) 47 ALR 517 at 519; [1983] FCA 96). The First Respondent also submitted that there was a significant public interest in the finality of administrative decisions. The First Responded cited Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67 at [15]-[17]. In Marks the review application was made 17 months after the relevant decision. McHugh J suggested (at [15]) that the public interest required that there be “an end to litigation about the efficacy” of acts or decisions of public bodies or officials, but also considered the importance of the case to the applicant.
In any event, the First Respondent also submitted that there was insufficient merit in the application for an extension of time, including in the grounds of review, to warrant reinstatement.
Applicable principles
Rule 16.05(2) of the Rules relevantly provides:
(2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party;…
The order of 14 March 2019 dismissing the Applicant’s application was made in his absence. The order was entered before the application under r.16.05 was made. The preconditions for the exercise of the court’s discretion under r.16.05 are satisfied.
As stated in NAJN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 414 at [7], there is a tension between the public interest in the expeditious conduct of litigation and the obligation of the court to ensure that litigants have the opportunity to present a case when there is a real dispute. The power of reinstatement is generally not exercised unless the applicant can show that, by accident and without fault on the part of the applicant, the order was made without their being heard. It is, however, necessary to have regard to all the circumstances on the evidence before the court.
The discretion to set aside an order under a provision such as r.16.05 must be exercised judicially and with caution, bearing in mind the overarching principle of the finality of litigation. However, in Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 White J suggested (at [9]) that in the context of judicial review of an administrative decision, the circumstances to which the equivalent rule in the Federal Court Rules 2011 (Cth) may apply “may be quite varied, so that it may not be appropriate to require exceptional circumstances in all cases”. His Honour continued at [9]:
… Nevertheless, it is apparent that good reason must be established for the Court to exercise the discretion to set aside an order which has been entered. The authorities indicate that parties seeking the exercise of the discretion, when the orders sought to be set aside were made in their absence, will usually have to provide a proper explanation for that absence, and show that they have a case which is reasonably arguable ...
Similarly, the rules of this court do not circumscribe the discretion to set aside orders made in the absence of a party under r.16.05. In my view, the suggested approach in Lal (No 2) is also appropriate in the circumstances of this case.
As discussed below, the application of these principles is complicated by the fact that in the present case, setting aside the dismissal for non-appearance would not, in itself, afford the Applicant a hearing of his substantive judicial review application. It would first be necessary for him to obtain an extension of time under s.477(2) of the Act.
Explanation for non-appearance
In support of the reinstatement application, the Applicant focused primarily on his explanation for non-attendance at the callover. In cross-examination he confirmed that the letter from Mills Oakley referred to in his friend’s affidavit (see [26] above) was a letter of 17 January 2019 which attached a notice of address for service. He and his friend went to that address on the callover date.
The First Respondent contended that the Applicant could not credibly claim that he was misdirected about where he had to attend court for the callover when he “plainly” had an order from the court which clearly identified the correct time, date and location of the courtroom and the presiding judge.
It was pointed out that nowhere in the Mills Oakley letter of 17 January 2019 was there any indication that the Applicant had an upcoming hearing date or that he was required to attend the solicitor’s offices for any reason.
The First Respondent also pointed to a difference between the claim in the application in a case that when the Applicant went to the office of the Minister’s solicitors on the date of the callover the receptionist had allegedly said to him “every (sic) is ok” and that she took the letter from him, and his evidence in his affidavit of 20 March 2019 in which the Applicant stated that the receptionist had told him that “everything is ok and [we] will send you a letter”. However these claims are not necessarily inconsistent. As explained by the Applicant’s friend, initially they gave the receptionist the letter from Mills Oakley and after she had been “inside” she told them that the Applicant would receive a letter.
In cross-examination the friend confirmed that he had formed the view that the Applicant should attend the address on the letter (the address of the office of Mills Oakley) because at the time the Applicant had come to see him he had given him this letter and said he was supposed to attend a court hearing. When the friend looked at the letter he thought that the Clarence Street address was the hearing address. He agreed to go with the Applicant and help him to reach that address. He explained that the Applicant told him that he did not know how to get to the court for the hearing. The friend stated that the Applicant had not given him a copy of the first court date orders.
The First Respondent also submitted that it “defies credibility” that despite knowing that he had to attend a court hearing on 14 March 2019, the Applicant and his friend had instead attended the office of the solicitors for the First Respondent. It was contended that he could not credibly claim that on the basis of the letter enclosing a notice of address for service he was “misdirected” about where he had to attend court.
While I accept that the Applicant cannot claim that he was “misdirected” about where and when he had to attend court, he did not make such a claim. The Applicant’s claim was that he mistakenly went to the address on the correspondence he received from the First Respondent’s solicitors.
The First Respondent, who did not put any evidence before the court as to whether there was any record of the Applicant attending the Mills Oakley office on the morning of 14 March 2019, submitted that even if it was accepted that the Applicant had attended the Mills Oakley office on the day of the callover, this was not a satisfactory explanation as to why he did not attend the callover. It was said to be his responsibility to ensure that he was at the correct place at the correct time for his judicial review proceedings that would determine his visa status in this country.
The First Respondent pointed out that the Applicant had successfully attended court on 20 November 2017 for the first court date directions hearing. It was suggested that on that day the Applicant had been assisted by an interpreter and had signed short minutes of order that were said to have been ultimately made by consent and that clearly specified the callover listing details.
I accept that the Applicant agreed to orders being made by consent on 20 November 2017 as the solicitor for the First Respondent told the court from the bar table (although the orders themselves do not state that they are by consent). Those orders specified the time, date and address for the callover on 14 March 2019.
The first court date directions hearing was in the Law Courts Building in Queens Square. The orders required the Applicant to file all further documents in the proceedings at the registry of the court, also located at the Law Courts Building, Queens Square, Sydney. However the callover was listed at another address (80 William Street), some considerable time after the first court date. The Applicant clearly understood that the callover was to be at some place other than Queens Square and that it was to be at 9.30am on 14 March 2019.
However in January 2019, just over a year after the first court date and two months before the scheduled callover, the Applicant (who is from a non-English speaking background) received a letter from Mills Oakley enclosing a notice of address for service. It may well be obvious to a legal practitioner, and to those for whom English is their first language, that this was not a notification of the address for the anticipated callover on 14 March 2019. However, having heard the cross-examination of the Applicant and his friend, I accept that the Applicant and his friend misunderstood that the reference in the notice of address for service to an address in Clarence Street was a reference to the place at which the callover would be conducted.
The callover was listed some considerable time after the first court date directions hearing. Whatever explanation and translation into Arabic the Applicant may have been provided with in relation to the orders proposed to be made on that day had been given over a year before the time at which he had to attend the callover. The Applicant and his friend have consistently maintained, and I accept, that he attempted to attend the callover on the correct date. The Applicant could not, and indeed did not, claim that he was misdirected about where and when he had to attend court. However I regard these circumstances as an understandable mistake on his part.
It is an applicant’s responsibility to ensure that he is in the correct place at the correct time, but I bear in mind the potential confusion and complications caused for applicants from non-English speaking backgrounds, particularly in circumstances where first court date directions hearings and other (much later) hearings in Sydney are in different locations.
Further, even if there is a minor inconsistency in the evidence as to precisely what the Mills Oakley receptionist said, the thrust of the Applicant’s affidavit evidence in this regard (given shortly after he was notified of the dismissal for non-appearance and maintained consistently and corroborated by his friend) was that, by mistake, he and his friend went to the office of the solicitors for the First Respondent in Clarence Street, instead of to the William Street address of the court.
I accept that, in the particular circumstances of this case, the Applicant has provided a reasonably satisfactory explanation for his non-appearance at the callover on 14 March 2019.
Other relevant matters
Prejudice to the Minister can be addressed, at least to some extent, by a costs order that reflects any additional costs incurred. In a case such as the present, the obligation of the court to ensure that a litigant who is making a real attempt to present a case of the nature of the present application assumes particular significance. The Applicant has endeavoured to engage with the court process. He filed affidavit evidence after the directions hearing. He has made considerable, albeit sometimes late or confused, attempts to comply with court orders and requirements since he filed his reinstatement application. He is a non-English speaking applicant who relied on a friend for assistance to guide him to an unknown address in Sydney. He was prompt in seeking reinstatement after being notified of the dismissal of his application.
I have also borne in mind that this matter relates to an application for a protection visa and that the consequences the Applicant claims to fear in his home country are very serious. It is a matter of considerable importance to an unsuccessful protection visa applicant.
Merits of the application for an extension of time
While the Applicant provided an explanation for the delay in commencing the judicial review proceedings, he did not directly address the arguability of his grounds of review. However as discussed below, he provided an explanation for the delay in seeking judicial review and raised concerns about the approach of the Authority.
The First Respondent submitted that the Applicant’s application for an extension of time (and his proposed substantive judicial review application) lacked sufficient merit.
An extension of time application entails consideration of all the relevant circumstances (see SZTES v Minister for Immigration and Border Protection [2015] FCA 719). As pointed out in SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 at [46]-[48], factors which are ordinarily to be taken into account in considering an extension of time application include whether there has been a reasonable and adequate explanation for the delay in commencing the judicial review proceedings, whether there is any prejudice to the Minister and whether the Applicant’s substantive application is sufficiently arguable to justify the extension of time.
I also bear in mind that it is generally not appropriate to investigate fully the merits of a substantive case in the context of an extension of time application when what is in issue is whether the grounds intended to be relied on are reasonably or sufficiently arguable.
It is neither necessary nor appropriate in the context of the reinstatement application to make a decision as to whether I am satisfied that it is in the interests of the administration of justice to grant an extension of time. Rather, a successful reinstatement application is a pre-requisite to consideration of the extension of time application. What is presently in issue is whether the extension of time application has sufficient prospects of success, in the sense that it is reasonably arguable, such that the interests of justice require that the Applicant be given the opportunity to present and have determined his case for the grant of an extension of time.
It is the case that initially the Applicant did not seek an extension of time in writing as required under s.477(2) of the Act. In so far as it was contended that he was on notice of the requirement to make such a written application, at least since the First Respondent filed and served his response in these proceedings (on 3 November 2017), I note that the “consent” orders that were made by the registrar at the first court date on 20 November 2017 do not address the requirements for an application for an extension of time.
After some obvious confusion on the Applicant’s part, when I explained the requirements the Applicant did file a fresh application in which he sought an extension of time and also an affidavit which addressed the delay in commencing judicial review proceedings. He also sought to explain the delay in filing evidence about his brother’s murder (which occurred after the decision of the Authority).
The First Respondent submitted that the Applicant’s application for an extension of time was not sufficiently arguable.
I have not made any finding at this stage of these proceedings as to whether there is a satisfactory explanation for the delay in commencing the judicial review proceedings. However I accept that it is relevant to have regard to the explanation provided for the delay as well as to the merits of the proposed grounds of review, as part of a consideration of whether the case for an extension of time is such that the interests of justice require that the Applicant be given the opportunity to present his case in that respect and have it determined.
As the First Respondent submitted, the delay in commencing these proceedings (41 days after the expiration of the 35 days limit) was not unduly long, although it was not insubstantial.
The Applicant’s explanation in his affidavit filed on 11 July 2019 is that the Authority’s decision of 3 August 2017 was sent to his authorised recipient, a named solicitor in Melbourne, but that the Applicant was not made aware of the decision until Centrelink informed him that a payment to him had been cancelled because his application to the Authority had been refused. His evidence is that he then spoke to his lawyer who confirmed to him that he had received the Authority’s decision and told him that he would lodge an application on his behalf in the Melbourne registry of this court.
The Applicant’s evidence is that his lawyer sent him a copy of what he described as a letter (but which is in fact a notice of filing and hearing) that he received from the court in Melbourne with details of a matter which the Applicant understood was his matter.
As the First Respondent pointed out, this notice of filing and hearing in fact referred to a different matter. Like the Applicant’s proceeding, it bore a pseudonym and not the name of an applicant, but it related to a document filed on 7 April 2017, whereas the Authority’s decision in this case was not made until 3 August 2017.
The Applicant claimed that he did not understand that this was not his application until a meeting with the Department of Immigration in October 2017. The Applicant attested that on 13 October 2017 a case officer from the Department had called him and asked him to attend the meeting to discuss his status. The Applicant stated that the case officer also telephoned his lawyer. According to the Applicant, his lawyer admitted that he had sent him the wrong notice of filing letter and that it was not an application filed for the Applicant.
The Applicant supported this claim with evidence (the copy of the notice of filing and also evidence that he was granted a Bridging visa on 13 October 2017). He claimed that he then went to the Federal Circuit Court registry in Sydney to obtain the documents to file his application. A friend who helped him had ticked the box “No” instead of “Yes” to the question about whether an extension of time was required.
It would be necessary in the context of a hearing of the application for an extension of time to determine whether this was an acceptable explanation. It is detailed and relatively coherent. I accept that it might not withstand cross-examination, but whether it is in fact a satisfactory explanation for the delay in starting these proceedings is not a matter for determination at this stage. However I am satisfied that while it is somewhat artificial to consider the arguability of an explanation for the delay in starting judicial review proceedings in the present context, an explanation in writing for the delay has been proffered in writing as required under s.477(2)(a) of the Act which, if it is accepted, may well amount to a reasonably satisfactory explanation.
I also bear in mind that in an appropriate case, notwithstanding the absence of an entirely satisfactory explanation, the merits of a matter and all the other circumstances may warrant an extension of time.
I have had regard, in a preliminary sense and on a reasonably impressionistic basis, to the merits of the substantive application for the purposes of considering whether the interests of justice require that the Applicant should be given the opportunity to present his case for an extension of time.
The Applicant relied on the same two general and unparticularised grounds in both applications that he filed. These are first, that the Authority failed to take into account a relevant consideration and took into account an irrelevant consideration and second, that the Authority’s decision was unreasonable.
It is clear from these grounds, the affidavit accompanying the original application and the Applicant’s submissions, that the Applicant disagrees with the Authority’s decision. In addition, various aspects of the Applicant’s written and oral submissions in relation to the Authority’s decision and what occurred the TPV interview, while somewhat lacking in clarity (particularly given the incomplete nature of the “translation”), may be seen as addressing these grounds or as raising other potential grounds of review.
Thus, whether seen in terms of an assertion of a failure to consider an integer of the Applicant’s claims or as relevant to the general contention of unreasonableness, the Applicant expressed concern about the Authority’s understanding and consideration of the evidence he gave in his entry interview and also in his protection visa interview.
Relevantly, the Applicant sought to take issue with the Authority’s account of what allegedly occurred in his TPV interview in circumstances where such evidence was relied upon by the Authority in affirming the delegate’s decision. In addition to the written statement he provided to the court in April 2018, in April 2019 the Applicant provided a further statement amounting to a submission which raised not only with the merits of the Authority’s decision, but also the accuracy of the Authority’s approach to evidence he had given in the TPV interview. It was for this purpose that he provided the “translation” of answers that he understood was a transcript of the TPV interview.
In particular, the Applicant claimed that he had told the delegate that his brother (who was identified by name) was under threat every day, that gangs used to threaten his brother and that his evidence to the delegate had not been understood or taken into consideration by the Authority.
However, relevantly, the Authority found that the Applicant had given “inconsistent and vague” evidence about his claims that he was asked to join the Al-Sadr militia in 2010 and again in 2013 and whether a letter was issued which threatened him for transporting plain clothed military personnel to a military base in Mosul.
The Applicant also raised an issue as to whether he had been given the opportunity to provide all relevant information to the delegate in relation to his claims. He claimed that the delegate had cut short the interview without giving him the opportunity to explain all of his claims. This is not apparent from the translation of his answers, but the Applicant also relies on a CD of the TPV interview (which could be listened to in the context of a hearing of the application for an extension of time or a final hearing).
In making its findings the Authority also had regard to the omission of certain claims from the Applicant’s entry interview. The Applicant took issue with the Authority’s consideration of his evidence in the entry interview. Such an approach must also be considered in light of the caution expressed in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 at [56]-[57].
The Applicant’s expression of concern that the Authority did not believe him in relation to past claimed events in Iraq may also be seen as raising an issue as to the legal reasonableness of the Authority’s conclusion that his evidence about the militia’s threats (and the change in their approach between 2010 and 2013) was “circular and nonsensical” and its finding that the Applicant had provided no explanation as to why “he had not mentioned [the 2012 death threat] claim in either his entry interview or TPV interview (sic)” (when in fact both the delegate and the Authority recorded that he had made this claim in his TPV interview).
The Applicant put evidence before the court about the shooting murder of his brother which occurred after the decision of the Authority. In so far as he intended to claim that circumstances and his risk of harm had changed following the death of his brother, these are matters that he could and should raise with the Minister, ideally with the assistance of proper representation.
In light of these matters and the explanation provided for non-appearance at the callover, I am satisfied in all the circumstances that good reason has been established to exercise the discretion to set aside the dismissal for non-appearance so that the Applicant has the opportunity to present his case for an extension of under s.477(2) of the Act.
The orders made on 14 March 2019 dismissing the review application with costs pursuant to r.13.03C(1)(c) of the Rules should be set aside under r.16.05 of the Rules.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 12 June 2020
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