FDH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 323
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FDH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 323
File number(s): MLG 2544 of 2017 Judgment of: JUDGE FORBES Date of judgment: 20 May 2022 Catchwords: MIGRATION – application for extension of time – consideration of relevant factors – failure to explain reason for delay – grounds of substantive application for judicial review lack merit – application to extend time dismissed Legislation: Migration Act 1958 (Cth) s 5J, 36, 65, 477, 477
Federal Circuit Court Rules 2001 (Cth) r 44.05
Cases cited: CEV15 v Minister for Immigration and Border Protection [2017] FCA 976
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
SZQGO v Minister for Immigration & Citizenship [2012] FCA 177
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 3 May 2022 Solicitor for the Applicant: In Person Solicitor for the First Respondent: Mr Creedon Solicitor for the First Respondent: The Australian Government Solicitor ORDERS
MLG 2544 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FDH17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.The Application filed on 23 November 2017 for an extension of time pursuant to section 477(2) be dismissed.
2.The Applicant shall pay the First Respondent’s costs fixed in the amount of $5,000.
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 FORBES
In this matter the applicant seeks an order under section 477(2) of the Migration Act 1958 (Cth) (“the Act”) for an extension of time in which to commence a proceeding for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on
12 May 2017.
An application to this Court for judicial review of a Tribunal decision must be made to the Court within 35 days of the date of the migration decision. In this matter, the application for judicial review should have been filed by 16 June 2017. However, the applicant lodged his application, including his application for an extension of time, on 23 November 2017, more than 5 months out of time.
Section 477(2) of the Act confers on the Court a broad discretion to extend time where the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
Having considered the submissions of the parties and for the reasons set out below, I have determined that I should not exercise my discretion to extend time in this matter.
BACKGROUND
Application and initial refusal of visa
The applicant, who is a citizen of Malaysia, applied for a protection visa under section 65 of the Act on 27 April 2016. At the time of his application he was 56 years of age, but is now 62. In his protection visa application, the applicant stated that he departed Malaysia legally on
12 February 2016 and arrived in Australia the same day, entering on a visitor visa.
The applicant’s claims from his protection visa application can be summarised as follows:
(a)he left Malaysia because he is a pensioner and an elderly person. He is unable to work in Malaysia because of his age and the income is not there. He claims to have many commitments;
(b)he did not have any income and he and his wife were depressed with the situation given they have many bills they have to pay; and
(c)the authorities in Malaysia cannot and will not protect him as the government does not care about citizens. There was a “Bersih” campaign held for want of justice.
On 28 October 2016, the Minister’s delegate refused to grant the protection visa on the basis that there was nothing before the delegate which suggested that the applicant would be targeted and/or seriously harmed by any individual or group because of his race, religion, nationality, political opinion or membership of a particular social group, upon returning to Malaysia. The delegate also found that the applicant’s concerns regarding return to Malaysia, which were related to financial hardship, did not amount to significant harm.
On 2 November 2016, the applicant lodged an electronic application with the Tribunal for merits review of the delegate’s decision. In that electronic application, the applicant provided personal contact details and an address for correspondence, including an email address to which communications from the Tribunal could be served[1].
[1] Court Book (CB) pages 62-63
Tribunal decision
On 3 November 2016, the Tribunal acknowledged receipt of the application for review and on 10 April 2017 the Tribunal sent the applicant a letter inviting him to attend a hearing on
11 May 2017.
On 11 May 2017, the applicant appeared before the Tribunal to give evidence and present arguments. On the day of the hearing the applicant appeared with his wife who had her own separate application for review of a delegate’s decision to refuse to grant a protection visa. The applicant and his wife each nominated the other to appear as a witness at their respective hearings and the Tribunal consented to the two cases being heard together at one hearing.
Incidentally, evidence before the Court[2] discloses that on the day of hearing the applicant filed a “Change of Contact Details-MR Division” form which provided a new residential address for service of correspondence. No change was sought in relation to the applicant’s email address for correspondence and in that form, which the applicant signed, the applicant expressly agreed to the Tribunal sending all correspondence to him by email.
[2] CB pages 78-79
On 12 May 2017, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa. Based on the evidence provided by the applicant at the hearing, the Tribunal found that the applicant had come to Australia with his wife to work and earn money to enable him to pay off debts more quickly than he could if he remained in Malaysia.
The Tribunal decision records the applicant’s evidence that he came to Australia for just one reason which was his age. He said that at the age of 57 it was difficult for him to get a job. He added that he had worked as a painter and had worked at a power station on a two-year contract but this ended in October 2014. He said that he had subsequently done various jobs including painting houses and boats.
The applicant also said that he had problems in Malaysia with arrears on house and car loans. He said that he still had a house and a car in Malaysia and that from Australia he sent money to his son who made repayments on his behalf. He stated that his weekly salary in Australia was equal to his monthly income in Malaysia, he liked living in Australia and considered the economy to be good here. The applicant also commented that he would just like to make some money, pay off his debts and then would return to Malaysia.
The applicant’s wife generally corroborated his reasons for coming to Australia. She added that there had been an economic downturn and the prices of goods and services had increased in Malaysia, but in Australia they could survive and take care of each other. The applicant’s wife also had her own medical reasons for wishing to remain in Australia.
When queried about the references to “Bersih” in his visa application, the applicant said he had never been involved with the campaign and added that the reasons stated in his application form were wrong.
The Tribunal found, based on the evidence of the applicant and his wife at the hearing, that there was no evidence that either of them had suffered treatment amounting to persecution involving serious harm in Malaysia for any one or more of the five reasons set out in section 5J(1)(a) of the Act. The Tribunal also found that neither the applicant nor his wife had suffered treatment amounting to significant harm as set out in section 36(2A) of the Act.
Based on the evidence at the hearing, the Tribunal concluded that there is no real chance of the applicant suffering treatment amounting to persecution involving serious harm or a real risk of the applicant suffering treatment amounting to significant harm, should he return to Malaysia now or in the foreseeable future. Accordingly, the Tribunal found that the applicant did not satisfy the refugee criteria under section 36(2)(a) or the complementary protection grounds under s 36(2)(aa) for the grant of a protection visa. For those reasons the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
The applicant was informed of the Tribunal decision on 12 May 2017 by email sent to the email address identified by him on his Tribunal application[3]. That email correspondence from the Tribunal also included a fact sheet informing the applicant that if he considered the decision was wrong in law, he may seek judicial review in the Federal Circuit Court of Australia. The fact sheet sets out the following information in relation to review of Tribunal decisions:
[3] CB page 81
“Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.”[4]
[4] Fact sheet "Information about decisions-MR division", CB page 83
Application for Judicial Review
On 23 November 2017, the applicant lodged an application seeking judicial review of the Tribunal’s decision. The Application was filed approximately 160 days after the 35 day time limit prescribed by section 477 had passed.
The applicant cites three grounds in support of his claim that the decision is infected with error, namely:
1. The Tribunal failed to consider all my claims
2. The Tribunal committed jurisdictional error by taking into account irrelevant considerations
3. The Tribunal referee to the Applicant’s willingness to approach the authorities for identity documents being a strong support for the contention that the Applicant did not fear harmed in Malaysian.
The applicant also made an application pursuant to section 477(2) of the Act seeking an extension of time to have the Tribunal’s decision of 12 May 2017 judicially reviewed. The single ground cited in support of the application for an extension of time was “I had proceed to made an application through e-lodgement but it had been refused”[5]. On that day, the applicant also filed an affidavit which annexed a copy of the Tribunal’s decision record. The affidavit did not depose to any facts or circumstances relevant to the application for an extension of time.
[5] CB page 3
On 8 August 2018, a registrar of the Court made procedural orders by consent to enable this matter to be prepared for trial. The respondent was ordered to file and serve a copy of a Court Book in electronic form and paper form by 22 August 2018. The applicant was ordered to file and serve any amended application, any supplementary Court book and any written submissions at least 28 days prior to the final hearing. The Minister was directed to file and serve written submissions no later than 14 days for the hearing.
On 16 August 2018, the Minister filed and served a copy of the Court book containing all documents relevant to the proceeding. On 19 April 2022, the Minister filed and served an outline of submissions which explained the grounds on which the Minister opposed the application for an extension of time. In an affidavit affirmed on 29 April 2022, the Minister’s solicitor, Thomas Patrick Creedon, deposes to the filing and service of the Court book and outline of submissions, including further electronic service of those documents upon the applicant by email on 29 April 2022.
Prior to the hearing of this matter, the applicant did not file any amended application, any further affidavit material or any written outline of submissions.
HEARING OF THE APPLICATION
The matter came before me for hearing on 3 May 2022. The applicant was self-represented but appeared in the company of his wife. The applicant was assisted by a Malay interpreter. The Minister was represented by Mr Creedon, a solicitor employed with the Australian Government Solicitor.
After explaining the Court process to the applicant and confirming that he was in possession of the Court book and the Minister’s submissions, he was invited to address the Court on the reasons why the Court should grant an extension of time in which to bring his application. He was also informed that in the course of making his submission about extension of time he could also explain why he believed there was jurisdictional error in the Tribunal’s decision.
The applicant submitted that he is now 63 years old and because of his age if he returns to Malaysia it will be difficult for him to get a job. He added that if he remains in Australia he believes he will still manage to get a job. He said that his children are still schooling in Australia. The applicant said that he also has a foster child living with he and his wife. He said the father of the foster child is a drug addict who cannot service the child.
In response to the Court’s question as to why he did not make an application for judicial review within 35 days, the applicant said “we have been cheated by someone”. He gave no other particulars.
When asked to explain Ground 1 of his application, being that the Tribunal did not properly consider all his claims, the applicant said that he properly applied for permission to stay in Australia. He said that he and his wife had complied with all their obligations but the Tribunal would not give them permission to stay.
The applicant also submitted that he knew that he and his wife could not get a visa for a long period, but he hoped the Court would give them an opportunity to stay. He said one day maybe they can get permanent residency. The applicant also said that he and his wife had recently made a petition for permanent residency to the Australian government. In relation to this, the Court was shown a screenshot of correspondence on the wife’s mobile phone which appeared to show that they had petitioned the House of Representatives in January 2022 for permission to remain in Australia but a decision had been made not to refer their request to the Minister.
Mr Creedon on behalf of the Minister relied upon his written submissions dated 19 April 2022. He also made brief oral submissions and replied to matters raised by the applicant.
Mr Creedon drew attention to rule 44.05 of the Federal Circuit Court Rules 2001 (Cth)[6], which was in place at the time the applicant made his application for an extension of time. That rule provides as follows:
(1)An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2)An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) each document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought - the evidence explaining the delay in showing why it is necessary in the interests of the administration of justice for the court to grant an extension
(underlining added)
[6] That rule has now been replaced by Rule 29.05 of the Federal Circuit and Family Court of Australia (Division 2) (Gen Federal Law) Rules 2021 which is in substantially identical terms.
The Minister submitted that the Court rules plainly require affidavit evidence explaining the reasons for the delay showing why it is in the interests of the administration of justice to grant an extension of time. Noting the legislative requirement of section 477 of the Act, it was submitted that the requirement under rule 44.05(2)(c) is mandatory. The Minister noted that the applicant had not filed any such affidavit and that there was no evidence before the Court explaining the reasons for delay.
Mr Creedon also drew attention to various applications the applicant had made to the Tribunal during the period of the 160 day delay between the Tribunal’s 12 May 2017 decision and the date of his application for an extension of time. Evidence before the Court reveals that between 10 July 2017 and 15 October 2017 the applicant made four additional applications to the Tribunal for review of the decision of the delegate dated 28 October 2016. In respect of each of those applications, the Tribunal decided that it had no jurisdiction to engage in the review, as the applications sought to review the same decision that had already been reviewed and affirmed by the Tribunal on 12 May 2017[7].
[7] Tribunal decisions dated 2 August 2017, 6 September 2017, 11 October 2017 and 2 November 2017 (CB pages 94-105)
Addressing the applicant’s oral submission that a reason for delay was that the applicant and his wife had been “cheated” by someone, the Minister submitted that there was no evidence of any third party involvement before the Tribunal or the Court. It was submitted that the Tribunal had communicated its decision and fact sheet to the email address provided by the applicant. Mr Creedon submitted that the applicant must be taken to have been aware of the 12 May 2017 decision and the information contained in the Fact Sheet which accompanied the decision when it was sent to him by email that day.
In relation to the separate reason for delay identified in the application, namely that the applicant had tried to file an application for review with the Court by e-lodgement within time but had been refused, the Minister submitted that there was simply no evidence to support that contention.
The Minister also briefly addressed the merits of the substantive application for judicial review, noting that as a relevant consideration for the exercise of the Court’s discretion in relation to the application for an extension of time. Mr Creedon submitted that at an impressionistic level the application for judicial review enjoyed no prospect of success and that the interests of the administration of justice would not be served by the Court extending time for the application to be prosecuted. The merit of the three grounds advanced by the applicant in support of the application for judicial review and the Minister’s submissions in relation to those grounds are dealt with later in these reasons.
As to other matters relevant to the exercise of the Court’s discretion to extend time, Mr Creedon conceded that there would be no prejudice to the Minister. He submitted, however, that the absence of prejudice alone is not a sound basis to extend time.
Mr Creedon also conceded that a refusal by the Court to grant an extension of time cannot be appealed and that the impact of a decision adverse to the applicant is a matter which should be taken into account in the exercise of the Court’s discretion.
The Minister’s representative also briefly addressed the child-caring responsibilities which had been raised by the applicant in the course of his oral submissions. It was submitted that the applicant’s responsibilities in relation to school age children or a foster child might be matters to be considered in the Court’s consideration of whether an extension of time should be granted, but those factors have no bearing on whether the Tribunal erred in its decision. Ultimately, it was submitted that the application for judicial review was so lacking in merit that that factor should outweigh other considerations in relation to the application for an extension of time.
In a brief reply, the applicant submitted that the Malaysian economy is in poor shape, that he is of a senior age and that if he returns to Malaysia it would be prejudicial to his school-age children.
CONSIDERATION
The applicant filed an application for judicial review some five months after the 35 day time limit prescribed by section 477(1) of the Act. Accordingly, the applicant may not prosecute an application for judicial review of the Tribunal’s decision of 12 May 2017 unless the Court grants his application for an extension of time.
Section 477(2) of the Act states that the Court may, by order, extend the 35 day period as the Court considers appropriate if:
(a)an application for an order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
As stated earlier, the Minister also contends that Rule 44.05 of the Court Rules imposes a further mandatory requirement which must be met before the Court can consider an application for an extension of time. By sub rule 44.05(2)(c), any application in support of an application for extension of time must include evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant extension. The language of that rule operates harmoniously with section 477(2)(b).
The applicant did file an affidavit in support of his application for an extension of time, but that affidavit does not contain any evidence or annexe any material which explains the delay or which shows why it is necessary in the interests of the administration of justice for the Court to grant an extension. The application filed on 23 November 2017 contains a bare assertion that the applicant had tried to make an application through e-lodgement which had been refused. However, there is no evidence before the Court in relation to that matter by way of affidavit and the applicant said nothing about it at the hearing on 3 May 2022.
I consider that the requirement of the applicant to comply with rule 44.05(2)(c) is mandatory but, if I am wrong about that, the explanation offered by the applicant in his initiating materials does not rise above mere assertion. The applicant has not provided any evidence regarding his alleged attempt to file a judicial review application with the Court and in the absence of such evidence, the Court cannot be satisfied that the applicant made an attempt to seek judicial review of the Tribunal’s decision within time.
The only other explanation for delay offered by the applicant was his submission, at the hearing, that he and his wife had been “cheated by someone”. Again, this does not rise above mere assertion. The applicant made the application to the Tribunal and appeared self-represented before the Tribunal. He provided an email address for receipt of all communications from the Tribunal. The evidence satisfies me that the Tribunal decision and the fact sheet setting out the right to seek judicial review was sent to the applicant at that email address. The application to this Court, made out of time, was also made by the applicant alone. I agree with the Minister’s submission that there was no evidence of any third party being involved in the application before the Tribunal or the applicant’s application to this Court for judicial review.
I also accept the Minister’s submission that the applicant should be taken to have been aware of the Tribunal’s 12 May 2017 decision and his right to seek judicial review. Evidence that he made four further applications to the Tribunal for review of the delegate’s decision, each of which was rejected on the basis that the 12 May 2017 decision had already dealt with that matter, satisfies me that the applicant was aware of the 12 May 2017 decision and the review rights which attached to it.
In terms of the exercise of the Court’s discretion to extend time under section 477(2), the expression in the “interests of the administration of justice” is not defined in the Act. Nonetheless, the expression has received considerable judicial consideration and, in determining whether to grant an extension of time, this Court has adopted the non-exhaustive principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [18]-[23] where his Honour directed consideration to the following:
·the extent of the delay;
·the explanation for the delay;
·any prejudice to the respondent;
·the impact on the applicant;
·the interests of the public at large; and
·the merits of the substantive application.
The extent of delay in this matter is considerable. The applicant did not file his application for judicial review until five months or about 160 days after the 35 day time limit expired.
I have discussed the applicant’s explanation for the delay in the paragraphs above. The applicant has not complied with the Court rules which required him to file an affidavit explaining the delay and showing why it would be in the interests of the administration of justice to grant an extension. The materials filed in this proceeding and the oral submissions made by the applicant do not assist him. Based on the evidence before the Court, the applicant has not offered an explanation which weighs in favour of an order granting an extension of time.
As stated above, the Minister has conceded that the grant of an extension of time will not give rise to any prejudice to the respondent.
I have had regard to the impact on the applicant if I should not exercise discretion to allow an extension of time. I note the applicant’s submission that the dismissal of his application may have consequences for a school-aged child in respect of which he has caring responsibilities and possibly a foster-child. However, there is no evidence before the Court about these matters and I am not in a position to make an assessment about the gravity of any impact.
Moreover, in relation to these caring responsibilities, I agree with the minister’s submission that while they may be relevant to my consideration of the extension of time application, they do not bear on the question of whether the Tribunal erred in its decision. None of these matters can improve the merit of the substantive application for judicial review or improve the applicants prospects of success.
I am also mindful that a refusal of an application for an extension of time cannot be appealed. In the event that I exercise my discretion against the applicant, I accept that the consequences for him will be significant. If I was at all unsure about the way in which I should exercise my discretion in this matter, this factor would weigh in the applicant’s favour.
However, consideration of the merits of the substantive application at an impressionistic level satisfies me that, if heard and determined by the Court, the application for judicial review would have no realistic prospect of success.
It is not necessary for me to finally determine the grounds advanced by the applicant in support of his application or to fully investigate the merits of the substantive case[8]. Rather, my task is to have regard to whether the grounds of the substantive application are sufficiently arguable or have reasonable prospects of success as part of my consideration of factors which inform whether it is necessary in the interests of the administration of justice to extend time[9].
[8] SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [49] per Wigney J
[9] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [46]–[48]; CEV15 v Minister for Immigration and Border Protection [2017] FCA 976 at [9]
I accept the Minister’s written and oral submissions in relation to each of the three unparticularised grounds relied upon by the applicant in his application filed on
23 November 2017. I accept the Minister’s submission that the applicant’s grounds are hopeless.
By Ground 1, the applicant asserts that the Tribunal failed to properly consider all of his claims. However, as submitted by the Minister, it is self-evident on a fair reading of the decision that the Tribunal did consider all the matters raised by the applicant. The applicant was invited to attended a hearing before the Tribunal on 11 May 2017 and on that occasion the applicant, in the company of his wife, gave evidence about their financial position, his difficulty finding work in Malaysia due to his age, the house and car he owned in Malaysia and his personal situation. The applicant expressly abandoned his claim in relation to a “Bersih” campaign in Malaysia which had been mentioned in his visa application, so there was no requirement for the Tribunal to consider the claim.
Having regard to the evidence currently before the Court, the Tribunal’s finding that the applicant’s claims were not for one of the reasons set out in section 5J(1) of the Act was properly open to it. It was also properly open to the Tribunal to reach the conclusion that any financial hardship suffered by the applicant and his wife upon return to Malaysia would not amount to treatment amounting to significant harm under section 36(2A) of the Act.
Ground 2 is no more than an unparticularised assertion that the Tribunal committed jurisdictional error by taking into account irrelevant considerations. A fair reading of the Tribunal’s decision satisfied me that the Tribunal considered all matters raised by the applicant and that it was not moved to reach findings based on matters not raised by him.
Ground 3 alleges that the Tribunal “referred to the applicant’s willingness to approach the authorities for identity documents as being a strong support for the contention that the applicant did not fear harm in Malaysia.” The Tribunal’s decision is entirely silent in relation to any such matter, and there is no reference to the issue of identity documents. The Tribunal accepted that the applicant is a citizen of Malaysia and there does not appear to be any reason why further enquiry was necessary. The ground is not reasonably arguable and has no merit.
CONCLUSION
The Court should not exercise its discretion to extend time to appeal, even for a short period, if an appeal has no prospect of success[10].
[10] SZQGO v Minister for Immigration & Citizenship [2012] FCA 177 at [29] per Murphy J
In this matter the lack of merit in the applicant’s substantive claims for judicial review of the Tribunal’s decision weighs so heavily against him that I am not satisfied it is necessary in the interests of the administration of justice to exercise my discretion to extend time.
I will order that the applicant’s application for an extension of time pursuant to section 477(2) should be dismissed.
I will also order that the applicant pay the ministers costs of the proceeding fixed in the sum of $5,000.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate: Madeleine Lodge
Dated: 20 May 2022
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