GBR18 v Minister for Home Affairs

[2019] FCCA 354

FEDERAL CIRCUIT COURT OF AUSTRALIA

GBR18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 354

Catchwords:
MIGRATION – Decision by Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused.

Legislation:

Acts Interpretation Act1901 (Cth), s.36

Migration Act 1958 (Cth), s.477

Cases cited:
Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344
SZNYE v Minister for immigration and Citizenship [2010] FCA 500
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZOZG v Minister for Immigration and Citizenship [2011] FCA 756
Jess, M.P. v. Scott, R.T. & Ors (1986) 12 FCR 187
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491
QAAHMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9

Applicant: GBR18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APEALS TRIBUNAL

File Number: SYG 3268 of 2018

Judgment of: Judge Emmett

Hearing date: 11 February 2019

Date of Last Submission: 11 February 2019

Delivered at: Sydney

Delivered on: 11 February 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Ms Ada Wong
(Mills Oakley Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3268 of 2018

GBR18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) to seek judicial review of the decision of the Administrative Appeals Tribunal dated 3 September 2018 (“the Tribunal”). The applicant filed the application for judicial review on 23 November 2018, some 44 days after the expiration of the 35 day period after the Tribunal’s decision as required by s.477(1) of the Act.

Legislative framework

1. Section 477 of the Act is as follows:

   “Time limits on applications to the Federal Circuit Court

   (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

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

   (3)  In this section:

   ‘date of the migration decision’ means:

   (a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 - the date of the written decision under that subsection; or

   (b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal-- the date of the written statement under subsection 368(1) or 430(1); or

   (c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal -the date of the oral decision; or

   (d) in any other case-the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

   (4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”

2. Relevantly, pursuant to s.477(2) of the Act, the Court may extend the 35 day period if the Court considers that it is necessary in the interests of justice to extend time to the applicant to seek judicial review of the decision of the Tribunal.

3. The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established. Those principles include the length of the delay, the explanation for the delay, the presence or absence of prejudice to the respondent; and, the prospects of success of establishing jurisdictional error in the Tribunal’s decision.

4. In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) 3 FCR 344 (“Hunter Valley”); SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J). In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], Mortimer J stated relevant principles that were approved by the Full Court of the Federal Court of Australia in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [21] per Tracey, Perry and Charlesworth JJ, as follows:

   “63. The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]- [48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.”

5. The first respondent does not suggest that they would suffer any prejudice if time was extended. However, it is also well established that the mere absence of prejudice is not sufficient by itself to grant the applicant an extension of time (see Hunter Valley at [21] per Wilcox J).

6. If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] per Murphy J; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J).

7. It is also well established that the longer the delay, the more persuasive the explanation needs to be (see Jess, M.P. v. Scott, R.T. & Ors (1986) 12 FCR 187 at 195 per Lockhart, Sheppard & Burchett JJ).

8. Regard must also be had to the significant public interest in the finality of administrative decisions (see Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491, (“Ex Parte Marks”) at [15]-[17] per McHugh J).

The proceeding before this Court

1. The applicant was unrepresented before this Court this morning, although had the assistance of an interpreter. The applicant confirmed that she received the Tribunal’s decision record.

2. I explained to the applicant that she was required to seek judicial review of that decision within 35 days of the date of the Tribunal's decision, being 3 September 2018, and that her application for judicial review was not filed until 23 November 2018, some 44 days out of time. I further explained to the applicant that the Court had power to extend time to her under s.477(2) of the Act if the Court was of the view that it was necessary in the interests of justice to do so.

3. I also explained to the applicant that of particular relevance to the Court would be the length of the delay, her explanation for the delay and the prospects of success of her application for judicial review.

4. The applicant confirmed that the only explanation for her failure to file for judicial review within the statutory timeframe was because she was having financial issues. The applicant provided no further details and said no more than that she was not a lawyer.

5. I accept that the applicant was having difficulty with the legal requirements involved in a proceeding such as is presently before the Court. The applicant provided no evidence to support that bare assertion of financial difficulties.

6. The applicant confirmed that she had attended a directions hearing before a registrar of this Court on 17 December 2018, at which time she had been directed to serve any further evidence and submissions in support of her application and was provided. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in her own language at that directions hearing.

7. It is well established that, without more, financial constraints are not an acceptable explanation for a delay in filing a notice of appeal or application for judicial review. In QAAHMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9. The delay in that case was 3 months and the only explanation offered was the appellant’s failure to pay solicitors’ fees. The Full Court of the Federal Court of Australia (Tamberlin, Kiefel and Weinberg JJ) said at [7]:

   “…The only explanation for the delay in taking any step in this Court between that date and 14 May 2003 is the appellant’s failure to pay his solicitors’ fees. Without more, such a situation would not provide a reason for exempting a party from the application of the rules prescribing time limits. It cannot therefore provide a sufficient explanation for the continuing delay on the part of an appellant for filing an application for leave to appeal.”

8. The applicant’s evidence before this Court was that she received a copy of the Tribunal’s decision in time to comply with the mandatory period for seeking judicial review but was unable to do so because of the bare assertion “I am having financial issue”. Plainly, a delay of 44 days has no prospect of being found to be reasonable or satisfactory for that reason alone.

9. A delay of six weeks and two days is not a short delay.

10. I accept that there is no prejudice to the first respondent by the grant of an extension of time and that any prejudice rests with the applicant.

11. In considering whether it is necessary in the interests of justice to grant the applicant an extension of time, I have regard to the prospects of success of the applicant’s substantial application for judicial review of the Tribunal’s decision.

12. The applicant neither confirmed nor departed from the grounds of the application expressed as follows:

    “ 1. The decision was taken withour proof

    2. Decision has lawful errors.”

    (Errors in original)

13. Both grounds make bare assertions unsupported by particulars, evidence or submissions and do not identify any error capable of review by this Court.

14. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider her claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

15. I invited the applicant to say whatever she wished in support of her Application generally. The applicant had nothing relevant to say beyond that she wished to stay in Australia.

16. The Tribunal's decision record makes clear that the Tribunal determined that it did not have jurisdiction to consider the application for review lodged on 7 August 2018 in circumstances where the prescribed statutory time period ended on 5 August 2018. The Tribunal noted that that day was a Sunday. The Tribunal correctly informed the applicant that, applying s.36(2) of the Acts Interpretation Act1901 (Cth), the applicant had until the end of the next day, that was not a Saturday or a Sunday or a holiday, to lodge her application. That is, the applicant had until 6 August 2018 to lodge an application for review of the Delegate’s decision.

17. The Tribunal satisfied itself that the applicant had been notified of the Delegate’s decision by letter dated 9 July 2018 and dispatched by email; and, that the applicant was notified in accordance with the statutory requirements.

18. The first respondent tendered a bundle of relevant documents identified as Court Book, filed on 13 December 2018, which was marked Exhibit 1R. Exhibit 1R contained the online lodgement of the applicant’s application to the Tribunal for review of the Delegate’s decision and the application lodgement date identified on that document is 7 August 2018, 13:13:39 AEST. 

19. In the circumstances, I am satisfied that the applicant lodged the review application on 7 August 2018, whereas the last day was 5 August 2018. Accordingly, the Tribunal’s determination that it had no jurisdiction to consider the review application would appear to be without error.

20. In considering whether it is in the interests of justice that time be extended to the applicant, I have regard to the fact that the applicant’s substantive application for judicial review of the Tribunal’s decision would appear to have no prospects of success or at least such prospects that an extension of time is likely to be an exercise in futility.

21. Whilst I make no final finding as to whether or not the Tribunal’s decision is affected by jurisdiction error, none is apparent on the face of the Tribunal’s decision record, and none has been identified by the applicant this morning. I accept that there is prejudice to the applicant in refusing to extend time to him to seek judicial review of the Tribunal’s decision. However, in balancing the interests of both parties and the overall interests of justice, I also have regard to the significant public interest in the finality of administrative decisions (see Ex Parte Marks).

22. In all the circumstances, but particularly in light of the unsatisfactory explanation for the applicant’s delay, and the prospects of success of the applicant’s application for judicial review of the Tribunal’s decision, I am not satisfied that it is necessary in the interests of justice to extend time to the applicant.

23. Accordingly the applicant’s application for an extension of time should be refused with costs.

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate: 

Date:  26 February 2019