EYD17 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 348

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EYD17 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 348   

File number(s):

SYG 3444 of 2017

Judgment of:

JUDGE MANSINI

Date of judgment:

13 March 2025

Catchwords:

MIGRATION – application for an extension of time for judicial review of a decision of the then Immigration Assessment Authority – where substantive application lodged 224 days (or 7 months and 10 days) out of time – where substantive application is futile and lacks merit –  extension of time ought not be granted and application refused.  

Legislation:

Migration Act 1958 (Cth) ss. 473CD, 477(2), 499(1), 499(2A)

Cases cited:

EGW17 v Minister for Immigration [2019] FCCA 653

SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442

Tran v Minister for Immigration and Border Protection [2014] FCA 533

Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28

Division:

Division 2 General Federal Law

Number of paragraphs:

44

Date of hearing:

6 March 2025

Place:

Sydney

Counsel for the Applicant:

Mr Bodisco

Solicitor for the Applicant:

ABU Legal

Counsel for the First Respondent:

Mr Johnson

Solicitor for the First Respondent:

HWL Ebsworth Lawyers

ORDERS

SYG3 444 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EYD17

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANSINI
DATE OF ORDER:	13 MARCH 2025

THE COURT ORDERS THAT:

1.The application for an extension of time (as amended on 6 March 2025) is refused.

2.The Applicant pay the First Respondent’s costs fixed in the amount of $10,928.00.

3.In respect of order 2, the Applicant have liberty to apply within 7 days.

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 Mansini

1. This decision concerns an application for an extension of the time within which an application for judicial review was required to be made to the Court.

2. The substantive application seeks judicial review of an administrative decision to affirm a decision of a delegate of the First Respondent not to grant the Applicant a temporary protection (subclass 785) visa. It was filed some 224 days (or 7 months and 10 days) outside of the statutory timeframe.

3. Not being satisfied that it is in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is refused. The reasons for this decision follow.

   CONTEXT

4. On 15 June 2016, the Applicant applied for a temporary protection (subclass 785) visa.

5. On 18 October 2016, a delegate of the First Respondent refused to grant the protection visa.

6. On 24 February 2017, the Immigration Assessment Authority (as it then was) gave written reasons by which the delegate’s decision to refuse the Applicant a protection visa was affirmed (Authority’s reasons).

   APPLICATION BEFORE THE COURT

7. On 10 November 2017, the Applicant lodged an application for judicial review of the Authority’s reasons in the Court.  The originating application identified that an extension of time was required because the application was not made within 35 days of the date of the migration decision. The specified grounds for an extension of time were as follows:

   I considers it is in the interests of the administration of justice to extend time because:

   1.   There is a serious question and jurisdictional error committed by the Tribunal.

   2.   I am under significant amount of pressure as my wife is undergoing mental health issues and was not able to concentrate and seek proper legal advice to file a judicial review application.

   (Please refer to affidavit of Chadi Kassar)

   3.   In my view that as a result of failure to consider my claims and document the Tribunal failed to engage in active intellectual process as a result of that consequences of the decision of the Second Respondent not being set aside are extremely serious.

   (sic.)

8. The originating application was accompanied by an affidavit of the Applicant, affirmed 30 October 2017, which annexed a copy of the Authority’s reasons, acknowledged the delay and annexed copies of 2 medical records relating to the Applicant’s wife.

9. On 27 November 2017, a response was filed on behalf of the First Respondent which opposed the orders sought by the Applicant and, further, sought costs if the application was ultimately dismissed.

10. Various procedural orders were then made.

11. The following materials were relied on in the proceedings:

    (a)Court Book filed on 14 February 2018;

    (b)Amended application filed 6 March 2025;

    (c)Applicant’s outline of submissions filed 22 October 2024;

    (d)First Respondent’s outline of submissions filed 18 February 2025;

    (e)Affidavit of the Applicant affirmed 30 October 2017 and filed 10 November 2017; and

    (f)Affidavit of the Respondent’s solicitor affirmed and filed 18 February 2025.

12. The matter proceeded to hearing before the Court as presently constituted on 6 March 2025. The Applicant attended and was represented by Counsel and the First Respondent was also represented by Counsel.

    Should the Court be satisfied to make an order extending time?

13. Section 477(2) of the Migration Act 1958 (Cth) (the Act) allows the Court to grant an extension of the 35-day period within which an application must be made as the Court considers appropriate if:

    (a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.

14. The statute does not specify particular criteria which must be satisfied to establish that it is in “the interests of the administration of justice” to grant an extension.

15. In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) (Katoa) at [12], the majority explained the relevant considerations for the Court when applying the provision:

    Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

    See also: Katoa at [35], [39] and [62]; SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 (Foster J) [46]–[48].

16. Although it is often appropriate to assess merits at a “reasonably impressionistic level” or at a “threshold level” in terms of whether the proposed ground(s) “enjoy[s] reasonable prospects of success”, the High Court in Katoa held that it is within the Court’s jurisdiction to have regard to the merits of a ground of review as it considers appropriate in the circumstances of the case: [17]–[19]. For example, at [18]:

    …if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.

    Was the application filed late?

17. An application for a remedy under s.476 in relation to a migration decision must be made to this Court within 35 days of the date of the migration decision: s.477(1) of the Act.

18. The Authority’s reasons were published on 24 February 2017.

19. An application for judicial review in this Court was due to be filed by 31 March 2017.

20. Not being lodged with the Court until 10 November 2017, this application for judicial review was made 224 days (or 7 months and 10 days) after the expiry of the 35-day period.

    Duration and explanation

21. In this case, the delay was not short. Rather, a delay of some 224 days is substantially in excess of the statutorily prescribed time for making an application for judicial review to the Court.

22. Typically the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Wigney J) (Tran) at [38]. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of a long delay: Tran at [38].

23. The Applicant gave 2 primary reasons for the delay in bringing his application to the Court, which may be summarised as:

    (a)Significant pressure on account of his wife’s mental health issues, which impacted his ability to concentrate and seek proper legal advice; and

    (b)Lack of legal representation and financial means.

24. In his affidavit evidence affirmed 30 October 2017, the Applicant deposed to the nature of his wife’s considerable medical and psychological conditions. Specifically, her constant fear and anxiety that he will have to depart Australia soon having failed to have his protection visa approved. He also described the mental stress on him and resulting inability to focus and that the delay in filing the judicial review application was due to all the ongoing problems he was undergoing at the time. In support the Applicant produced 2 letters, prepared some months prior:

    (a)A letter of a Dr Bishay of Universal Medical & Dental dated 19 May 2017, which affirmed that a person identified by the Applicant as his wife was suffering from anxiety depression, unemployed, relied on her husband for financial support and would benefit if her husband stays in the country.

    (b)A letter of a Ms Daisy Sequeira of the Jade Wellness Centre dated 18 May 2017, which stated that a person identified by the Applicant as his wife was suffering from anxiety and depression which at that time related to her fear that her husband would leave the country and her only support would be lost and she may fall back into chronic depression. The letter also described that the uncertainty was affecting the wife greatly and stated that the husband had not been a burden to society, supported the wife financially and emotionally and his wife says he is a law abiding person.  

25. The Applicant did not provide evidence of his financial circumstances or efforts taken to obtain legal representation.

26. Whilst empathetic to the Applicant’s situation, ultimately he has not addressed how his challenges reasonably explain the delay. Further, he has not explained why his affidavit was affirmed some 10 days prior to lodging the application in the matter. The absence of a satisfactory or acceptable explanation in circumstances of a delay of 224 days weighs against the grant of an extension of the time for filing the judicial review application.

    Prejudice

27. The First Respondent properly did not contend to suffer any particular prejudice were an extension of the time for filing to be allowed.

28. The absence of prejudice is a factor that weighs neither for nor against the grant of an extension of the time for filing.

    Merit of the substantive application

29. The time limitation at s.477(1) of the Act reflects the Parliament’s intention that an applicant should have only a relatively short time in which to challenge a migration decision before this Court. While the discretion to extend the time afforded to the Court pursuant to s.477(2) is broad, if it is proper to conclude that a claim is bound to fail, the Court should not permit the application to proceed and accordingly decline to extend time.

30. The cases make clear that, for the purposes of an extension of time application, the Court is concerned with whether the ground/s available to the applicant are reasonably arguable.

31. The single ground of judicial review in the amended application (for which leave to file was granted on the day of hearing, 6 March 2025) was expressed as follows:

    The IAA has breached section 499(2A) of the Migration Act.

    Particulars

    In making the findings at paragraphs [26] and [27], the IAA has failed to give genuine and realistic consideration of the Country Information Report – Lebanon of 18 December 2015.

    (sic.)

32. As the argument was developed, the Applicant contended that Ministerial Direction No.56 of 21 June 2013 (issued pursuant to s.499(1) of the Act) was of binding application on the Authority pursuant to s.499(2A) and in turn required the Authority to have regard to the DFAT Country Information Report – Lebanon dated 18 December 2015 (DFAT Report). Further, that the DFAT Report was misapplied, in particular, at paragraphs [26] and [27] of the Authority’s reasons. In summary, the Applicant sought to say that a fair read of the DFAT Report demonstrated that any threat posed by the Hizballah to the Applicant in Tripoli would be experienced across the entire country and, together with the fluidity of the security situation and the fact of the influence of Hizballah across the country the Court would conclude that the decision maker simply had not had regard to the DFAT Report.

33. Turning then to the Authority’s reasons.

34. At [3], the Authority noted that it had regard to the material referred by the Secretary under s.473CB of the Act (as it was at the relevant time). The Authority’s reasons refer to the DFAT Report throughout, in footnotes at each of paragraphs: [18], [19], [20], [21], [24], [25], [26], [27], [28] and [36].

35. And, pertinent to the single ground of review, at [26] and [27] of the Authority’s reasons, the decision maker said:

    26. In considering the prospect of return to Beirut, I note the applicant has raised concerns over Hezbollah's control over Lebanon as a whole. DFAT assesses that Hezbollah's influence would create no problems for most returning individuals and that while Hezbollah does exercise substantial control over Beirut's international airport, a returning individual would only be targeted if they were a direct threat to Hezbollah's authority. I am not satisfied that Hezbollah's or any other militia's interest in the applicant extended beyond the applicant's profile as an owner and manager of a gym with a large base of young clientele in a specific strategic location within Tripoli. I am not satisfied that the applicant would return to the gym business upon return and in any case, he has confirmed that he departed Lebanon through Beirut airport (under the control of Hezbollah) using his own genuine passport and on the evidence, he did not experience any problems while departing. I find this further supports that the applicant's problem with Hezbollah was localised to his area in Tripoli. I am not satisfied the applicant is considered a threat to Hezbollah, or that he faces a real chance of harm from Hezbollah throughout Lebanon and in particular, in Beirut.

    27. I note DFAT is not aware of any evidence that suggests returnee asylum seekers would be distinguishable from the broader community or susceptible to any form of discrimination or violence. On the evidence the applicant would not face any additional risks as a returning asylum seeker resettling in Beirut or if it became known that he originates from his area in Tripoli. I note the applicant has previous criminal charges however he was found innocent and released on the declaration of a judge and has documentary evidence in support of this. There is no indication that his history would become known to others in Beirut but if it did, I am satisfied the applicant is supported by his documentary evidence showing he was cleared of charges. I am not satisfied these previous charges contribute to a risk that the applicant would face harm upon return.

    (Footnotes removed)

36. There are 2 fundamental difficulties with the Applicant’s substantive argument.

37. First, at the relevant time, the Authority was not bound or required to comply with Ministerial Direction No.56 of 21 June 2013. The Court was taken to the decision in EGW17 v Minister for Immigration [2019] FCCA 653 (Heffernan J) , which is most apt:

    The Direction in its terms only applies to decisions made under ss 65, 414 and 415 of the Migration Act. The IAA’s decision-making power arises under s 473CC of the Migration Act; it has no power to grant or refuse a protection visa under s 65. Further, ss 414 and 415 of the Migration Act apply to “Part 7-reviewable decisions”; “fast track decisions” are expressly excluded from the definition of “Part 7-reviewable decisions” by s 411(2)(c) of the Migration Act. Further, I also do not accept that the IAA is required to comply with the Direction on the basis that, by s 473JA of the Migration Act, it is established within the Migration and Refugee Division of the Tribunal. 

38. Second, and although the ground was not put in this way but accepting that the DFAT Report formed part of the review material pursuant to s.473CD, the Authority’s reasons plainly disclose that the DFAT Report was given careful consideration. The allegedly impugned paragraphs of the Authority’s reasons, at [26] and [27], consider the prospect of the Applicant’s return to Beirut. There, the Authority expressly referred to the Applicant’s concerns of Hezbollah’s control over Lebanon as a whole and in making its findings referred to the DFAT Report, which references are discernible at paragraphs 3.23, 5.19, 5.20, 5.25 and 5.27 of the DFAT Report.

39. It is apparent from the Authority’s reasons that the Authority did consider the DFAT Report and the findings made at [26] and [27] were reasonably available to the decision maker. That the Applicant disagrees with the Authority’s assessment of the country information is insufficient to establish jurisdictional error. This Court does not have the power to redetermine or consider the merit of the visa application by conducting that assessment afresh. Without more, I am not persuaded that the Authority erred as contended for by the Applicant.

40. Not being persuaded that there is any jurisdictional error established by the single ground of review or otherwise apparent on the face of the Authority’s reasons, it is concluded that the substantive application is not reasonably arguable and would not succeed on the merits.

41. This is a factor that weighs strongly against the allowance of further time in which the judicial review application be filed.

    CONCLUSION

42. The application in this case was filed 224 days outside the statutory time limitation. The Court may only grant an extension of the time within which the application was to be made if such extension is in the interests of the administration of justice.

1. Weighing all of the considerations above, and in particular that the substantive judicial review application has no reasonably arguable prospects of success, I am not satisfied that it is in the interests of the administration of justice that there be an extension of the time within which to apply for judicial review of the Authority’s reasons of 24 February 2017.

2. Accordingly, the amended application to extend the time for making the judicial review application is refused. By affidavit affirmed 12 March 2025, the First Respondent outlined the basis of their application for costs in the amount of $10,928.00, being higher than the scale amount. As neither the Applicant or their legal representative appeared at delivery of reasons, the application was not opposed and I will order that the Applicant pay the First Respondent’s costs in the amount of $10,928.00. However, the Applicant will have 7 days’ liberty to apply in relation to costs.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.

Associate:

Dated:       13 March 2025