FLC18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 212
•19 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FLC18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 212
File number(s): SYG 2911 of 2018 Judgment of: JUDGE D HUMPHREYS Date of judgment: 19 February 2025 Catchwords: MIGRATION- Administrative Appeals Tribunal – Protection visa – application for an extension of time – out of time by 656 days – extension of time refused – application dismissed. Legislation: Migration Act 1958(Cth) ss 5H, 5J 36(2)(a), 36(2)(aa), 477(1) Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
DZAAD v Department of Immigration and Citizenship [2013] FCA 204
Fox v Percy [2003] HCA 22
Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) 3 FCR 344 at 349; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
NAAH v Minister for Immigration [2002] FCAFC 354
NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 5 February 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Maker (Sparke Helmore) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2911 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FLC18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
19 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application for an extension of time is refused.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of 4,189.38.
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 D HUMPHREYS
INTRODUCTION
This is an application for judicial review filed on 16 October 2018, seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal”), as it was then, dated 24 November 2016, affirming a decision of a delegate of the then Minister for Immigration and Border Protection (“delegate”) refusing to grant the Applicant a Protection (Class XA) visa (“the visa”).
The Applicant requires an extension of time to seek judicial review pursuant to s 477(2) of the Migration Act 1958(Cth)(“ the Act”)
The Court had regard to both Applications on the date of hearing.
For the reasons set out below, the Application for an extension of time is refused. Accordingly, the judicial review Application is dismissed.
BACKGROUND
The Applicant is a citizen of Nepal. He arrived in Australia on 2 August 2010.
The delegate’s Decision Record provides that the Applicant entered Australia with a fraudulently obtained passport and student visa (CB, 84).
On 16 December 2013, the Applicant applied for the visa. On 18 February 2015, the delegate refused to grant the Applicant the visa on the basis that he had effective protection in a third country, being India, under s 36(3) of the Act.
On 3 March 2015, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 24 November 2016, the Tribunal affirmed the decision under review. On 25 November 2016, the Applicant attempted to lodge an Application in the Tribunal to “re-open” the Application (CB, 147-151). On 9 January 2017, the Tribunal decided it did not have jurisdiction to review that Application.
The Applicant now seeks judicial review of the Tribunal’s substantive decision of 24 November 2016. The Application however was lodged on 16 October 2018, well outside of the specified 35-day time frame. Accordingly, the first issue is whether an extension of time should be granted.
THE LAW IN RELATION TO AN EXTENSION OF TIME
In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 the following matters were held to be relevant as to whether an extension of time should be granted:
(a) the extent of the delay;
(b) the explanation for the delay;
(c) prejudice to the respondent due to the delay; and
(d) the merits of the proposed application.
The Court may extend the 35-day period if it is satisfied that it is necessary in the interests of the administration of justice to make an Order extending time for filing of the Application.
The decision to grant an extension of time is a discretionary one: (see; DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28]):
The Application is brought under r 36.05 of the Federal Court Rules 2011. As the Minister has submitted, r 36.05 confers upon a court a broad discretion whether or not to grant an extension of time. The considerations generally relevant in determining whether an extension of time should be granted are well known. They include the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there is any prejudice to the respondents and the merits of the appeal if an extension is granted (Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (per Wilcox J); Jess v Scott (1986) 12 FCR 187 (per Lockhart, Sheppard and Burchett JJ); Parker v The Queen [2002] FCAFC 133 at [6] (per Spender, O'Loughlin and Dowsett JJ); Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]-[27] (per Foster J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[25] (per Cowdroy J)).
To the above, the Court would add that the greater the delay the more persuasive the explanation for the delay has to be. In considering whether to grant an extension of time, there are no mandatory relevant considerations; (see: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 ("Tu'uta Katoa") at [12]):
On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". 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.
APPLICATION FOR AN EXTENSION OF TIME
The Application for judicial review and an extension of time was filed on 16 October 2018, some 656 days outside of the 35-day time frame prescribed by s 477(1) of the Act. This is a very lengthy period of time which in and of itself mitigates against an extension being granted. As such, the reasons for the delay will need to be very persuasive.
The Applicant relies upon the following grounds (verbatim):
1.I did not know that after Refugee Review Tribunal (RRT) I can lodge application to Federal Circuit Court
2.RRT made decision without consideration of my evidence so the honourable court must examine the decision taken by RRT
3.As there is very compelling reason for judicial review of my case court must provide extension of time.
The Applicant claimed he did not know about the 35-day time frame. He claimed he only sought help some time later and paid $7,000.00 to a consultant who assisted him to lodge his Application to the Court. He claims he was not told the Application was out of time.
The First Respondent's position is that the Application ought to be dismissed as a result of the Applicant's delay. It is submitted that even if an Order is made granting the extension of time for the Applicant, the substantive Application should have sufficient prospects of success so as to not render the granting of an extension of time futile, citing WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]. The Applicant’s explanation as to the late filing of his application is wholly unpersuasive for the following reasons.
Firstly, being ignorant of the necessary time limits does not justify delay. It remained the Applicant’s responsibility to ascertain his review rights and applicable time limits: (see: QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9; SZLIH v Minister for Immigration and Citizenship [2009] FCA 108; NAAH v Minister for Immigration [2002] FCAFC 354).
Secondly, the Applicant claims to lack knowledge about the avenues of review. To this, the First Respondent submits that this claim does not withstand the evidence currently before the Court. When he was notified about the decision, the Applicant was provided with a fact sheet which expressly informed him about the avenues for review and the applicable time limits. A copy of this fact sheet is annexed to the Affidavit accompanying the present Application for judicial review, indicating the Applicant’s knowledge and receipt of that information.
Despite the Applicant taking steps towards seeking a review of the Tribunal decision by attempting to “reopen” the Tribunal Application, there is no substantiating evidence of steps taken between the ‘no jurisdiction’ decision in 2016 and the lodgement of the Application with the Court in 2018. The explanation provided for the delay does not explain the delay and cannot be seen as “exceptional” to the extent of warranting a significant departure from the prescribed time frame.
The Court accepts that the Applicant was clearly notified of his right to seek judicial review and of the 35-day time period in which to do so when he received the Tribunal decision. This is borne out by his attempt to have the Tribunal case ‘reopened’. The reason given for the very long delay is not persuasive, a fact that mitigates against an extension of time being granted.
The First Respondent accepted in written submissions that there would be no prejudice caused by the Applicant’s delay, save for the public interest in the finality of administrative decision making. This is particularly so in circumstances where the Minster, who is charged with Administration of the Act, would have reasonably proceeded on the basis that the Applicant accepted the decision made by the Tribunal. The First Respondent submits that the absence of prejudice alone is not a sufficient reason for extension of time to be granted; (see; Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) 3 FCR 344 at 349; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]).
The Court notes the proper concession by the Minister as to the lack of any real prejudice other than the need for finality in administrative decision making. The Court observes this consideration as being neutral in relation to whether an extension of time should be granted.
This then leaves the proposed grounds of judicial review. The proposed grounds should be considered at an impressionistic level. If they lack merit, there is no purpose in an extension of time being granted.
ADMINSTRATIVE APPEALS TRIBUNAL’S DECISION
The issue for determination before the Tribunal was whether the Applicant had a well-founded fear of persecution in Nepal for one of the reasons set out in s 36(2)(a(a) of the Act and if not, whether there are substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Nepal in line with s 36(2)(aa).
At [6]-[24] the Tribunal set out the evidence that was before the delegate and evidence presented to the Tribunal at the hearing on 15 November 2016. The evidence can be summarised as follows:
·The Applicant has been fearful of Maoists in his country since 1994 when he was 11 years old.
·In 2005, his father held prayers for the departed souls when the family of the King was killed. This upset the Maoists.
·In 2006, his father was kidnapped and tortured for five (5) days, causing him significant harm. The Applicant was pressured to join the Maoists from that time and instead fled to India where he stayed for a few months.
·The Applicant’s brother informed him that the Maoists were ringing asking for his address. The Applicant otherwise stated that he did not encounter any problems in India.
·The Applicant states that the Maoists began to search for him after four (4)-five (5) years in India. The Maoists went to his father’s house, insulted him and cut his arms for information on the Applicant. The Applicant moved to Qatar in 2007.
·The Applicant returned to Nepal in 2010. In the statement provided to the delegate the Applicant states that he left Qatar because his work permits expired. In the Tribunal hearing the Applicant then stated that he left Qatar because of what can happen to Nepalis in Qatar.
·In June 2010, the Applicant and his brother were attacked by a group of Maoists at a market at Kotasor. The Applicant was injured badly from this incident. At the Tribunal hearing the Applicant expanded on another incident that occurred stating that he was involved in a gang fight where he was hit with stones and a knife, which was separate to the attack in the market. The Tribunal highlighted it had difficulty accepting the truthfulness behind this claim. In August 2010 the Applicant came to Australia with a false passport.
·After his father’s death, the Applicant was informed by his sister to not return home to Nepal as he may be killed by the Maoists. The Tribunal pressed the Applicant as to why the Maoists would be interested in him. The Applicant said that it was because he had never supported their party and refused to join them.
·The Applicant clarified in the Tribunal hearing that his uncle had supported the family and never gave money to the Maoists.
·As to his reason for delay in lodging the protection visa Application, the Applicant said that he did not know about applying for protection earlier than he did.
·When asked what he fears will happen to him if he returns to Nepal, the Applicant stated that he has “lost everything”, and the danger still remains as the Maoists are now running the country and can kill him.
·The Tribunal put to the Applicant that independent country information before it suggested that there have not been any killings attributed to Maoists and further, no information supporting the killing of monarchists and monarchist supporters. The Applicant stated that the news only covered high level and not ordinary people. He reiterated that the Maoists have a history of violence, and he is not safe.
·The Tribunal had regard to the Treaty of Peace and Friendship between Nepal and India and indicated that the Applicant can live in India safely. The Applicant stated that he is afraid of the same people in Nepal as in India and although he gave evidence that nothing had happened to him when he resided in India before, this was due to him relocating often and avoiding danger.
The Tribunal set out independent country information from a Department of Foreign Affairs and Trade (DFAT) Report about the security situation in Nepal.
In considering the Applicant’s claims and evidence, the Tribunal made the following findings:
·It did not accept the Applicant left Qatar in 2010 because of his fear of harm from Maoists.
·The Tribunal did not consider it credible or plausible the Applicant would return to Nepal from Qatar if he was fearful he would be located by a Maoist in Qatar given that he had also claimed he fled Nepal for India and Qatar to avoid the Maoists.
·The Tribunal was prepared to accept as plausible and possible after taking into account country information about the Maoist insurgency, the level of violence and intimidation in Nepal during that period that the Applicant left Nepal for India and went from India to Qatar out of a fear of pressure to be recruited as a Maoist.
·On the evidence the Tribunal did not accept that Maoists were looking for the Applicant in Nepal or India, or that they pressured his father or any other family member to bring him back to Nepal. The Tribunal was not satisfied that the Maoists targeted or attacked the Applicant’s father, and that such an attack would have been directed to the Applicant. The Tribunal gave little weight to these claims brought from the Applicant’s written statement given that he acknowledges that it had been prepared by his agent and contained mistakes.
·The Tribunal found that there were inconsistences in the Applicant’s written statement which claimed his father was kidnapped and tortured for five days and the oral evidence led at the hearing. This led the Tribunal to reject the claims as lacking in credibility. The Tribunal did not accept that Maoists came to the Applicant’s father’s house to search for him. The Tribunal was not prepared to accept that, despite fleeing Nepal in 2001 in the context of Maoist insurgency, the Applicant was pursued or targeted by them.
·In relation to the gang fight in Kotasor, the Tribunal did not accept that he was attacked by Maoists in the market with his brother and in the event that the Tribunal did accept the Applicant’s evidence on this, it did not accept that the Maoists were involved, or that the Applicant had been specifically targeted.
·The Tribunal had regard to the security situation in Nepal and was unable to find information to support the claim of Maoist violence against supporters of the King, monarchists or members or supporters of Rastriya Prajatantra Party (RPP) or Rastriya Prajatantra Party Nepal (RPPN). The Tribunal found that the political landscape in Nepal had significantly changed and on this basis it was not satisfied the Applicant would face a real chance of harm in the form of physical harm or forced recruitment into a Maoist faction.
·The Tribunal considered that the Applicant may be fearful of economic insecurity or unemployment, however they found that these difficulties do not constitute serious harm within the meaning ensconced in 91R(2) of the Convention Relating to the Status of Refugees, 189 UNTS 151 (Refugee Convention).
·The Tribunal was not satisfied the Applicant would face persecution for reasons of his real or imputed political opinion.
The Tribunal found that the Applicant was not someone in respect of whom Australia had protection obligations over. The Applicant did not satisfy the criterion set out in ss 36(2)(a) and 36(2)(aa) of the Act.
GROUNDS OF JUDICIAL REVIEW
The Applicant’s three grounds of judicial review are contained in an Originating Application filed on 16 October 2018. They are as follows (verbatim):
1.Department of Home Affairs (DHA) made decision on speculative ground not the facts I provided to them
2.My life is in danger if I return back to Nepal which was totally ignored by DHA and Administrative Appeals Tribunal (AAT)
3.Even though AAT has power to refer my application to DHA for reconsideration ,however, AAT failed to do that.
THE APPLICANT’S SUBMISSIONS ON THE MERITS OF THE PROPOSED GROUNDS OF JUDICIAL REVIEW
The Applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the Applicant was in possession of a copy of the relevant Court books and that the First Respondent’s written submissions had been translated to him. The Court also ensured the Applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two (2) types of review. The Court set out the issues it was required to consider in relation to an extension of time Application. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court Orders, no written submissions or other material was provided to the Court by the Applicant in support of his case. In relation to Ground One (1), the applicant told the Court that the Tribunal did not listen to him about the things he wanted to talk about. Instead, the Tribunal asked him questions about different matters. As to what was speculative about the Tribunal’s decision, he said the Tribunal simply did not believe him and he could not understand why they said ‘No’.
When asked about Grounds two (2) and three (3), the Applicant stated he had nothing to say.
At the conclusion of the First Respondent’s oral submissions, the Applicant was asked if he wished to state anything in reply. He answered “No”.
THE FIRST RESPONDENT’S SUBMISSIONS ON THE MERITS OF THE PROPOSED GROUNDS
Proposed Ground One (1) contends that the Tribunal decision was made based on “speculative grounds” and not the “facts I [the Applicant] provided to them”. The First Respondent submits that this Ground is insufficiently particularised and on that basis it should be dismissed. The Applicant does not specify which “facts” he refers to and in any case the Tribunal gave extensive consideration to the Applicant’s claims and evidence at [6]–[24] of its decision after having had regard to independent country information and making adverse credibility findings against the Applicant.
The Tribunal’s approach was open to it on the basis of the material before it: (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”) at 45).
The First Respondent submits that the Tribunal was not required to accept uncritically the “facts” advanced by the Applicant. Further, the Tribunal did not have to possess rebutting evidence before finding that the Applicant’s assertions had not been made out; (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 (“Selvadurai”) at 348).
At proposed Ground Two (2), the Applicant alleges that the Tribunal ignored that his life was in danger if he returned to Nepal. The Tribunal made findings as to the Applicant’s risk of future harm at [37]–[39]. This Ground invites the Court to engage in impermissible merits review.
As to proposed Ground Three (3), a contention that the Tribunal failed to refer his Application to the Minister’s Department for reconsideration despite having the power to do so, the First Respondent argues is misconceived. The Tribunal could only remit the matter to the delegate if it was satisfied that the Applicant met the visa criteria, of which it was not. The determination by the Tribunal was not only open to it, but a requirement.
The First Respondent submitted that the Applicant’s proposed Grounds do not reveal any arguable jurisdictional error and do not sufficiently warrant the grant of an extension of time. In this respect, it is submitted that the Applicant has failed to demonstrate why it is in the interests of justice for the Court to grant an extension of time.
To the extent that the Applicant’s oral submissions take issue with the Tribunal’s adverse credit findings, these findings were open to the tribunal based on the evidence before it and for the reasons it gave.
DO THE GROUNDS OF JUDICIAL REVIEW HAVE MERIT?
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
It is well established that the Tribunal enjoys an advantage of fact to test the veracity of evidence given orally by observing the witness: (see: Fox v Percy [2003] HCA 22 at [41]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62]).
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an Applicant: (see: Randhawa at 451). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: (see: Selvadurai at [348]).
It is well settled that the country information and the weight it gives to that information is a matter for the Tribunal: (see: NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10).
It is for the Applicant to satisfy the Tribunal, being the relevant decision maker, that the Applicant meets the criteria for being a refugee: (see: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
In considering the Applicant’s grounds of judicial review, the Court has also considered the material contained within the Applicant’s affidavit of 16 October 2018. These matters go to factual matters only and do not disclose assertions of jurisdictional error.
Ground One is an unparticularised assertion that the decision made by the Tribunal – although the ground refers to the Department – was made on speculative grounds, not facts. No particulars are provided as to what matters were speculative on the part of the Tribunal. A ground of judicial review which lacks particulars may be dismissed on this basis alone. In order to assist the Applicant, the Court asked him what particular matters were ‘speculative’. He was unable to provide any answers.
A fair reading of the entirety of the Tribunal decision indicates that the Tribunal took careful account of the Applicant’s claims as to the reasons why he required protection, assessed them and in particular, assessed against relevant country information which indicated that there had been significant change in Nepal and that the Applicant would no longer be at risk for the reasons he claimed. These findings were open to the Tribunal based on the evidence that was before it and for the reasons given. At best, this ground seeks for the Court to engage in impermissible merits review. Ground One has no merit, even on an impressionistic level.
Grounds Two and Three can be dealt with together. Ground two consists of statements by the applicant that he believes his life is still in danger and this was ignored by the Tribunal. At its highest, this ground merely states emphatic disagreement with the conclusions arrived at by the Tribunal. Ground Three is a statement of fact not a ground of judicial review. The Applicant merely complains that the Tribunal did not refer or overturn the decision of the delegate. Both of these grounds are not proper grounds of judicial review and have no merit, even on an impressionistic basis.
DISPOSITION
The length of the delay in seeking judicial review is such that it does not point towards an extension of time being granted. The Court is also not satisfied as to the reasons given for the delay. The Court notes the proper concession by the Minister as to prejudice occasioned by the delay.
Most importantly, as set out above, none of the proposed grounds of judicial review have merit even on an impressionistic basis. In these circumstances it would be pointless to grant an extension of time.
The application for an extension of time is refused and the application is dismissed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 19 February 2025
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