FDH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case [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

  1. 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.

  2. 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.

  3. 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.

  4. Having considered the…

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AGLC
FDH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 323
Case
[2022] FedCFamC2G 323
Decision Date

CaseChat Overview and Summary

In the case of FDH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the applicant, a Malaysian citizen, sought judicial review of a decision by the Minister for Immigration to refuse him a protection visa. The applicant had applied for the protection visa under section 65 of the Migration Act 1958 (Cth) and the Minister's delegate had refused the application on the grounds that there was no evidence to suggest the applicant would face serious harm upon returning to Malaysia. The Tribunal affirmed the Minister's decision, and the applicant sought to challenge this decision by filing an application for judicial review with the Court.

The primary legal issue before the Court was whether it should exercise its discretion to extend the time limit for filing the application for judicial review. The Court considered whether the applicant had provided sufficient evidence to explain the delay in filing the application and why an extension of time was necessary in the interests of the administration of justice.

The Court found that the applicant had not provided any evidence to explain the delay or demonstrate that it was necessary to grant an extension of time. The Court emphasised the mandatory requirement under Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) that any application for an 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 an extension. The applicant had not met this requirement and the Court was not satisfied that the applicant had made an attempt to seek judicial review within the prescribed time limit. The Court also found that the applicant's oral submission that he and his wife had been "cheated by someone" did not rise above mere assertion.

Accordingly, the Court decided not to exercise its discretion to extend time and dismissed the applicant's application for judicial review. The Court held that the applicant had not provided sufficient evidence to explain the delay or demonstrate that it was necessary to grant an extension of time and the application was therefore made out of time. The Court noted that the Tribunal had communicated its decision and the fact sheet setting out the right to seek judicial review to the applicant by email, and the applicant had not provided any evidence of a third party being involved in the application before the Tribunal or the Court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.BACKGROUNDApplication 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 62-63Tribunal 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

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 62-63Tribunal 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.

Ratio Decidendi

Legal Principle Established

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.