FCJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1982
•27 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
FCJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1982
File number(s): MLG 4272 of 2020 Judgment of: JUDGE BLAKE Date of judgment: 27 August 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa – application for extension of time – Applicant six years out of time – significant delay justifies not granting extension of time – Applicant failed to provide acceptable explanation for delay – substantial application not sufficiently arguable – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 424A, 447(1), 447(2) Cases cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Commonwealth of Australia; ex parte Marks (2000) 75 ALJR 470
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Number of paragraphs: 36 Date of hearing: 17 August 2021 Place: Melbourne Advocate for the Applicant: In person Solicitor for the Applicant: None Counsel for the Respondents: Ms Elliott Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 4272 of 2020 BETWEEN: FCJ20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.The Application filed on 14 December 2020 for an extension of time pursuant to section 477(2) of the Migration Act 1958 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $3,737.
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for review of a decision made by the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) ('Tribunal') on 5 November 2014. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection (Class XA) visa ('visa'). As part of the application, the Applicant seeks an order that the Court extend the time for the filing of the application for review pursuant to section 477(2) of the Migration Act 1958 ('Act').
For the reasons that follow, I have decided to dismiss the application to extend the time for filing the application for review.
BACKGROUND
The Applicant is a Fijian national. She arrived in Australia on 21 October 2013 as a visitor. She applied for the visa on 6 November 2013.
The Applicant failed to attend a Protection Visa interview. On 10 March 2014, a delegate of the Minister ('delegate') refused to grant the Applicant the visa. The delegate noted that she had been unable to test the Applicant's claims for protection given her failure to attend the interview.
On 27 March 2014, the Applicant applied to the Tribunal for review of the delegate's decision.
On 15 September 2014, the Applicant was invited to attend a hearing before the Tribunal. The Applicant attended that hearing with the assistance of an interpreter.
On 5 November 2014, the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa.
The Applicant commenced proceedings in this Court by filing her Application for review ('Application') and affidavit in support on 14 December 2020. The Applicant has been unrepresented throughout the proceedings in this Court.
Orders were made by Registrar Carney on 12 May 2021. Those orders provided, among other things, that the Applicant have leave to file and serve any amended application, affidavits and submissions. The Registrar also made orders listing the matter for hearing of the application for an extension of time and were time to be extended, a final hearing.
Pursuant to those orders, the Minister filed written submissions. A Court Book was also filed by the Minister. The Applicant has not filed any other document. She appeared at the final hearing before me with the assistance of an interpreter.
THE APPLICATION FOR AN EXTENSION OF TIME
The Application sets out the following in relation to the extension of time:
1. See attached affidavit - the interests of justice favour the enlargement of time.
2. At time no one able to help. The agent that help with my protection application keep my details and email and we lost contact after I moved to Victoria. I only received the refusal notification later when I figure out how to open my email and I only have 2 days to figure out where i [sic] could get advice and who can help me with the papers.
3. I did seek help with refugee legal but because of short time they can't assist me and advice [sic] me to go to Canberra which is impossible for me to travel at that time with no money, I am scared, I don't know people and don't know how to get to Canberra.
4.Being undocumented after that make me really hard to survive but after I applied for BVE and granted with permission to work, I have some money to seek legal advice.
5.I can't depart to my country now and since AAT fail to consider my case I would like to lodge this application.
The substantive grounds of review contained in the Application are as follows:
1. The Tribunal failed to consider all my claims and threats in a reasonable way.
2.The Tribunal failed to give me an opportunity to explain and prepare for all my claim.
During the hearing before me, I asked the Applicant why it had taken such a long period of time for her to bring the Application. She largely emphasised what was set out in her Application. She said, effectively, that she did not have the financial resources or the knowledge to review the decision of the Tribunal. She stated that she had approached a lawyer one day before the extension of time was required, and that the lawyer told her she had to go to Canberra, however she could not go because she was new to the country and had no money. She then stated that it was only in 2020 when a co-worker told her she may have rights with respect to bringing an application to the Court, that she approached a union lawyer for assistance. That apparently resulted in the filing of the Application.
Under section 477(1) of the Act, an application made to this Court must be filed within 35 days of the date of the relevant decision.
Under section 477(2) of the Act, this Court may extend the 35 day time period for the filing of an application where the Court considers it is in the 'interests of the administration of justice' to do so.
The expression 'in the interests of the administration of justice' is not defined in the Act. This Court has, however, adopted the non-exhaustive principles set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 (see also SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6], SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46-48], SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15] - [19]) when determining whether an extension of time should be granted. The principles to be considered include the following:
(a)The extent of the delay;
(b)The explanation of the delay;
(c)Any prejudice to the Respondent;
(d)Whether the substantive case is 'sufficiently arguable' to warrant the extension of time. It is seldom in the interests of justice to exercise the discretion to extend time where an appeal has little or no prospects of success: see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48].
The extent of delay
The Application was filed on 14 December 2020. The Application is therefore approximately 6 years out of time.
The starting point in considering applications of this nature are the words of the Act. In this case, Parliament has selected 35 days as being the appropriate period in which applications are to be filed, subject to the discretion afforded to the Court under section 477(2) of the Act. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25, McHugh J at pp 7 - 10 of his decision discussed the history and rationale for limitation periods, noting that a person seeking to extend the time in which to file an application has the positive burden of demonstrating that the justice of the case requires the extension.
In Commonwealth of Australia; ex parte Marks (2000) 75 ALJR 470 ('Marks'), the High Court of Australia was asked to consider making writs of certiorari and mandamus 11 and 15 months out of time, respectively. The Court refused to grant the application, stating that the case would need to be 'exceptional' before the time for commencing proceedings was enlarged by many, many months.
It is of significance that in Marks, the Court found that the extent of the delay itself was sufficient to dispose of the application. At paragraph [16], McHugh J stated:
Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.
As noted earlier, the Parliament has specified a period of 35 days for the filing of an application of the type presently before me. The Applicant has filed the Application about 6 years out of time. On any view, this is a very significant delay. In my view, this is one of those cases where the length of the delay justifies not granting the extension of time.
The explanation for the delay
As I have noted, the Applicant advanced a number of explanations for the delay in filing the Application. These included a lack of financial resources and knowledge to seek a review, and that she was advised by a lawyer to go to Canberra but could not do so. Additionally, in her documents, she claims that she did not have anyone to help her and her agent lost her details. She also says that she only received the refusal notification when she worked out how to access her email.
Unsurprisingly, given she is unrepresented, the Applicant has not put on any evidence about these matters. That her agent lost her contact details does not explain why she has taken such a lengthy period of time to bring the Application. That she had some difficulty opening the refusal notification likewise does not explain why from the time she was aware of the refusal notice, she took such a long time to initiate proceedings in this Court. The Applicant has not provided any evidence or submissions in respect of her attempts to engage legal representation whether through Refugee Legal or otherwise. Nor has she provided any evidence as to her alleged lack of funds for the entire 6 year period, or how her claimed lack of funds has prevented her from seeking advice for over 6 years. Even allowing for some initial difficulties the Applicant may have faced in the period following the decision of the Tribunal, there is simply no explanation as to what the Applicant did in the intervening 6 years to seek help to challenge the decision of the Tribunal.
In my view, the Applicant has not provided an acceptable explanation for the delay.
Prejudice to the Minister
The Minister has not claimed that there is any prejudice suffered by him if the Court were to grant the Applicant an extension of time in the circumstances of this case. Accordingly, this is a factor that would favour the grant of any extension of time.
Is the substantive application ‘sufficiently arguable’?
As noted above, the Application contains two substantive grounds of review. Before me, in respect of these grounds, the Applicant contended among other things as follows. First, that everything she told the Tribunal was the truth. Second, that she wanted to go back and prepare herself to give evidence. Third, that it was the first time she had appeared in a Tribunal setting and she was nervous when questioned. Finally, that she wanted either the Court or the Tribunal to consider her intentions and look at her claim in detail.
The Applicant set out various claims to justify the grant of the visa. These were set out in her application for the visa (Court Book 18 - 21) and was also summarised by the Tribunal in its decision (see paragraphs [3]-[10] of the reasons).
This is a matter in which the Tribunal when assessing the various claims of the Applicant, stated that it had 'serious concerns about her credibility and the veracity of her claims' (at [14]). Further, the Tribunal expressed the view that it was ‘concerned that the applicant gave inconsistent and not credible evidence in relation to matters central to, and relevant to, the claims of past harm and her reasons for fearing a return to Fiji, as well as her delay in leaving Fiji and other matters' (at [16]).
Having expressed the views above, the Tribunal went on to assess in some detail the claims made by the Applicant. In respect of the Applicant's claims about events that occurred at a hotel and her home, the Tribunal after considering those matters in some detail, stated that it considered the Applicant's claims as being not credible and inconsistent to the extent that it undermined her credibility and her claims that the events occurred (at [20] - [22] of its reasons). In respect of the Applicant's claims about the confiscation of land, the Tribunal assessed the nature of those claims and ultimately pointed to various matters which it stated 'undermines the applicant's credibility and her claim relating to her parents land having been confiscated' (at [28]). The Tribunal considered claims about the Applicant's activities in Australia and after examining that matter in some detail, considered that the 'applicant's inability to explain these matters undermines her claim to have a subjective fear of return to Fiji based on activities carried out in Australia' (at [34]). In respect of other claims made by the Applicant, the Tribunal considered that her 'inconsistent evidence undermines her credibility' (at [39]). Of some significance, at paragraph [41] of its reasons, the Tribunal concludes that 'the applicant's evidence suggests that she was prepared to tell untruths to obtain a migration outcome, which undermines her credibility. For the above reasons, the Tribunal does not accept that the applicant is a witness of truth'.
Having expressed concerns about the Applicant's credibility, the Tribunal considered whether there could be any other reason for difficulties with the Applicant's evidence (at [42]-[43]). Of significance given the Applicant's contentions, the Tribunal considered whether the Applicant's 'nervousness' may have explained the difficulties with her evidence. Ultimately, the Tribunal concluded that the documents produced by the Applicant did not outweigh the Tribunal's concerns with the Applicant's evidence, before confirming its findings as to the Applicant's credibility at [45] of its reasons. The Tribunal then proceeded to make detailed findings of fact in relation to the Applicant's various claims (at [46]-[67] of its reasons).
In light of its findings, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution (at [62]-[67] of its reasons). Further, the Tribunal was not satisfied that there was a real risk that the Applicant would suffer significant harm for the purposes of section 36(2)(aa) of the Act. In light of those matters, the Tribunal affirmed the decision of the delegate.
Under Ground 1, the Applicant contends that the Tribunal failed to consider all of her claims in a reasonable way. No particulars are provided to this and it was not meaningfully expanded upon during the hearing. In my view, this ground of review is not sufficiently arguable. A review of the Tribunal's reasons discloses that it properly considered each of the Applicant's claims and gave its reasons for refuting those claims. It was open to the Tribunal to make the findings it did as to the credibility of the Applicant and to reject claims of the Applicant.
The Applicant's contention that she was not given an opportunity to explain or prepare for the hearing is also not sufficiently arguable. The applicant was invited to the hearing on 15 September 2014. At that hearing, she was assisted by interpreter. The Applicant knew from the decision of the delegate that the credibility of her claims was a central issue. In reaching its decision, the Tribunal not only assessed the credibility of the Applicant and the documentation she provided, but also relied on country information. Further, there was no information that the Tribunal was required to put to the Applicant as contemplated by section 424A of the Act. In these circumstances, I am satisfied that the Applicant was not denied procedural fairness.
The Applicant, like many unrepresented applicants before this Court, wants this Court to look in detail at her claims. That is understandable. Regrettably for the Applicant however, it is well established that this Court is not to engage in any merits review in applications of this type.
In my view, when these grounds of review are considered, they do not raise a sufficiently arguable case at an impressionistic level to make it necessary in the interests of the administration of justice to extend time.
In the circumstances, and for all of the reasons above, the application for an extension of time must be dismissed. Given the Applicant has been unsuccessful, the Applicant should pay the Minister's costs fixed in the scale amount in the sum of $3,737.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 27 August 2021
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