GJA18 v Minister for Immigration and Anor
[2020] FCCA 1514
•10 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GJA18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1514 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (subclass XE-790) visa – extension of time application – substantial delay of close to 18 months – consideration of Applicant’s explanation for delay – consideration of ‘in the interests of the administration of justice’ – held that the application for the extension of time be dismissed. |
| Legislation: Migration Act 1958, ss.5, 5AA, 13, 198AJ, 46A(1), 476A(3), 477, pt.7AA |
| Cases cited: BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61; |
| Applicant: | GJA18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent | IMMIGRATION ASSESSMENT AUTHORITY |
| File number | MLG 3720 of 2018 |
| Judgment of: | Judge Blake |
| Hearing date: | 12 May 2020 |
| Date of Last Submission: | 18 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 10 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Albert |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Solomon-Bridge |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application filed on 3 December 2018 and amended on 22 November 2019 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $10,842.50.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 3720 of 2018
| GJA18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 31 May 2017. In that decision, the Authority affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the Applicant a Safe Haven Enterprise (subclass XE-790) visa (‘visa’). The Applicant also seeks an extension of time in which to file the application for review of the decision of the Authority.
For the reasons that follow, I have decided not to allow the extension of time and dismiss the Application.
Background
The Applicant is an Iranian national. He arrived in Australia as an unauthorised maritime arrival in late August 2012.
The Applicant was granted a bridging visa on 26 June 2013, and also held a bridging visa between 29 April 2015 and 29 July 2016.
The Applicant applied for the visa on 17 May 2016. The Applicant provided, among other things, two statutory declarations in support of his application, which outlined his claims for protection. His application was subsequently refused by the delegate on 10 November 2016.
The matter was thereafter referred to the Authority. The Authority affirmed the decision of the delegate on 31 May 2017.
The Applicant made an application to this Court for judicial review of the Authority’s decision on 3 December 2018. The Applicant also filed an affidavit in support of the application, annexing the decision of the Authority.
On 22 November 2019, the Applicant filed an Amended Initiating Application (‘Application’), written submissions and an affidavit of Ms Chelsea Clark, a solicitor at Victoria Legal Aid (‘VLA’). The Minister filed written submissions on 29 November 2019.
The matter then came before me for final hearing on 3 December 2019. During the course of the hearing, I queried the explanation for delay in filing the proceedings in this Court. The Applicant sought to adduce further evidence in relation to this issue. Consequently, the matter was adjourned to enable the Applicant to file further material in support of the application to extend time.
The Applicant subsequently filed two further affidavits on 6 April 2020, one from the Applicant and one from Guy Coffey, a solicitor at VLA.
Extension of Time Application
The decision of the Authority was made on 31 May 2017. Under section 477(1) of the Migration Act 1958 (‘Act’), an application made to this Court must be filed within 35 days of the date of the relevant decision.
The initiating application to this Court was filed on 3 December 2018. The initiating application is therefore approximately 18 months out of time.
Under section 477(2) of the Act, this Court may extend the 35 day time period for the filing of an application where the Court considers it is in the interests of the administration of justice to do so.
This Court has adopted the non-exhaustive principles set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 (‘Hunter Valley Developments’) (see also SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15] – [19]) to guide its decisions when determining whether an extension of time should be granted. The principles to be considered include the following:
a)The extent of the delay;
b)The explanation of the delay;
c)Any prejudice to the Respondents;
d)Whether the substantive case is ‘sufficiently arguable’ to warrant the extension of time. It is seldom in the interests of justice to exercise the discretion to extend time where an appeal has little or no prospects of success: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (‘MZABP’) at [63]; MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 (‘MZZIV’) at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48].
It is important to observe that the principles set out above do not represent an exhaustive set of considerations which the Court must have regard to. In MZABP at [58], Mortimer J made the point that the phrase ‘in the interests of the administration of justice’ is broad enough to encompass consideration of other factors.
The Applicant submitted that the Court should exercise its discretion under section 477(2) of the Act to extend time, largely, on two grounds. First, that the Applicant had a reasonable explanation for the delay. Second, that the case he seeks to run is sufficiently arguable to warrant an extension of time. Indeed, the Applicant’s counsel indicated to the Court that not only was the argument sought to be run sufficiently arguable, but that it was a very strong ground.
The starting point in considering applications of this nature are the words of the Act. In this case, the Parliament has selected 35 days as being the appropriate period in which applications are to be filed, subject to the discretion afforded to the Court under section 477(2) of the Act.
In Brisbane South Regional Health Authority v Taylor [1996] HCA 25, McHugh J discussed the history and rationale for limitation periods. At pages 9 and 10 of his judgment, His Honour stated:
‘In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced" But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.’ (citations omitted)
In Commonwealth of Australia; ex parte Marks (2000) 75 ALJR 470 (‘Marks’), the High Court of Australia was asked to consider making writs of certiorari and mandamus 11 and 15 months out of time, respectively. The Court refused to grant the application, stating that the case would need to be ‘exceptional’ before the time for commencing proceedings was enlarged by many, many months.
It is of significance that in Marks, the Court found that the extent of the delay itself was sufficient to dispose of the application. At paragraph [16], McHugh J stated:
‘Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.’
More recently in this Court, Judge Lucev in WZAUN v Minister for Immigration and Border Protection [2019] FCCA 1681 (‘WZAUN’) considered an application to extend time under section 477(2) of the Act. The application in that matter was also filed approximately 18 months outside of the 35 day period permitted by the Act. Judge Lucev reviewed the relevant authorities in relation to extending time, including those that I have referred to above. His Honour ultimately refused to extend the time for filing. In the course of his reasons, His Honour noted that, in his view, ‘the delay alone in bringing the Proposed Judicial Review Application is so lengthy that, of itself, justifies not granting the Extension of Time Application’ (at [18]).
As noted earlier, the Parliament has specified a period of 35 days for the filing of an application of the type presently before me. The Applicant has filed his application about 18 months out of time. On any view, this is a very significant delay. I did not take the Applicant to suggest otherwise. In my view, the length of the delay represents a very significant obstacle for the Applicant.
Reasons for the delay
The Applicant sought to explain the lengthy delay. He relied on two affidavits that he filed in the proceeding. He also relied on an affidavit filed by his solicitor at VLA.
I have reviewed carefully the affidavits the Applicant seeks to rely on to explain the delay. From those affidavits the following chronology emerges:
a)31 May 2017: the Applicant learned of the decision of the Authority. He received notification in English only. His English language skills are limited. Also around this time, he lost his only source of income and back pain made it difficult for him to leave the house and travel any distance.
b)Also around the time above, he deposes to an (unsuccessful) attempt by his landlord to evict him from his home.
c)17 July 2017: Refugee Legal refer the Applicant to VLA.
d)28 August 2017: the Applicant spoke to VLA. He received assistance of a ‘general kind’ from VLA. Two days later, VLA sent to the Applicant the relevant Court application forms with instructions on how to complete them and an application form for legal assistance.
e)9 November 2017: VLA wrote to the Applicant to inform him of the receipt of the Authority’s decision.
f)Early 2018: the Applicant is evicted from his home. He says he is homeless. He takes up residence with some acquaintances from Iran.
g)January/February 2018: VLA makes attempts to contact the Applicant unsuccessfully.
h)March 2018: the Applicant’s back injury improves. He recommences work. He moves into shared accommodation.
i)11 May 2018: VLA managed to speak to the Applicant following his detention in the Maribyrnong Immigration Detention Centre. VLA send him, on the same day, again, the relevant Court Forms for lodgement.
j)24 May 2018: the Applicant sends his forms to VLA. The Applicant wanted to know whether the forms were completed correctly. On 25 May 2018, the forms are returned to the Applicant. The Applicant is told he needs to send the Application to the Court.
k)26 June 2018: the Applicant speaks to the VLA helpline in relation to his application forms.
l)July and August 2018: VLA attempts to contact the Applicant without success.
m)26 September 2018: VLA telephones the Applicant. VLA again sends the Applicant the Court application forms.
n)21 November 2018: VLA speaks to the Applicant about his Court application. A lawyer fills in the application forms. The applicant is again told to send the forms to the Court.
o)3 December 2018: the application for review is filed with the Court.
The above represents a summary of the relevant events taken from the affidavits relied on by the Applicant. I accept them as an accurate factual summary of what occurred. Aside from the chronology above, when the affidavits are read, there are a range of reasons that the Applicant seeks to rely on when explaining his delay. Those reasons are that:
a)he lacked the funds to brief a lawyer;
b)he suffered from a back injury and was unable to leave home;
c)he was suffering from anxiety, depression and shock, and that he was focused on surviving in detention;
d)he was homeless for a period; and
e)he had difficulty with English.
I propose now to consider each of these explanations.
Lack of access to a lawyer/inability to obtain advice
I accept that the Applicant lacked the funds to pay for a private lawyer. I also accept that VLA did not commence formally acting for the Applicant until after June 2019. The fact that an applicant does not have access to a lawyer is a factor which may be taken into account when considering whether to extend time: see MZZIV at [5].
This is not a case, however, where the Applicant was without access to legal advice or assistance. On his own evidence, and that of his lawyer, it is apparent that the Applicant consulted with Refugee Legal within 6 to 8 weeks of the decision of the Authority. Further, by 28 August 2017, some three months after the decision of the Authority, the Applicant had obtained advice from VLA.
That, however, is not the end of the matter. The Applicant was sent Court application forms on 30 August 2017, three months after the decision of the Authority. Accompanying those forms was a set of instructions on how to complete the forms. At this point, the Applicant was armed with advice from VLA, the Court forms, instructions on how to complete the forms, and information that VLA could not file an application in the Court for him.
It is significant that despite the information above, the Applicant did not act. No communication was received from him at all by VLA until May 2018, some eight months later.
August 2017 was not the only time, however, when the Applicant was advised by VLA and provided with the Court forms. He was sent the Court forms again on 11 May 2018, was again told that VLA could not assist with lodging the application, and received express advice that he needed to explain the delay in filing with the Court. Again, the Applicant took no action to complete the forms or file them with the Court.
The Court application forms were then sent a third time by VLA to the Applicant on 26 September 2018. A period of a further 7 to 8 weeks passed before the forms were eventually completed and filed with the Court.
In light of the above, while the Applicant did not have formal legal representation until much later, I find that the Applicant did have access to legal advice three months after the decision of the Authority. I find that he had instructions on how to complete the Court application forms three months after the decision of the Authority. I find that he was sent the Court application forms on three occasions over the course of the 18 month period. I find that that he delayed in acting to file his Court application and that even on the last occasion, a period of some seven weeks elapsed before the documents were actually filed. I therefore find that lack of access to a lawyer or lack of advice did not prevent him from lodging the forms with this Court.
The Applicant’s physical injury
The Applicant deposes that he had injured his back. He says this made it hard for him to leave the house, and he could not travel any distance from his home without significant pain.
The Applicant does not identify clearly in his material, the period of the incapacity he refers to above. Taking the view most advantageous to the Applicant, I am prepared to accept that he suffered from a back injury and that he was in pain from the time of the decision of the Authority on 31 May 2017 until March or April 2018, when he says his back improved, and he was able to return to work.
I do not accept, however, that the Applicant’s back pain was such that it prevented him from leaving his home for the duration of that period, or that it prevented him from obtaining advice for two reasons. First, the Applicant has not provided any evidence from a medical professional which supports his claim that he was incapacitated, could not obtain advice and could not leave his home without significant pain for the entire period between 31 May 2017 and March or April 2018. In this respect, I note the Applicant has had six months from the time this matter was last before me in December 2019 to source such evidence. He has not done so. Second, and more importantly, the Applicant’s lawyer confirms in his affidavit that on 28 August 2017, the Applicant attended the VLA offices in person where he consulted with a lawyer. The Applicant therefore had the ability to leave his home to see a lawyer. Equally, he could have left his home for other reasons, including to file any application in this Court in person should he have chosen to do so.
For the reasons set out above, I find that the Applicant’s back injury did not prevent him from seeking advice in respect of his case, or from filing any application in this Court. I therefore do not accept any physical injury that the Applicant sustained explains his delay.
The Applicant’s homelessness
The Applicant deposes that his landlord attempted to evict him twice and that on the second occasion, in early 2018, the landlord was successful. The Applicant then says ‘I was then homeless. Some Iranians that I knew took me in’. He later deposes that in March or April 2018, his back improved and soon after that, he left the home of his Iranian acquaintances and moved into shared accommodation.
The Applicant’s affidavit is silent as to the nature of the homelessness he experienced. He does not say, for example, that he was living rough, sleeping in emergency accommodation or elsewhere. Looked at through a lens most beneficial for the Applicant, to the extent that he might have experienced those things, I infer that if they did happen, it was for an extremely short period. This is because it is apparent from the evidence read fairly that the Applicant quickly took up accommodation with some of his Iranian acquaintances.
To the extent that the Applicant asserts the homelessness was the period that he was with his Iranian acquaintances, and that this disrupted his ability to pursue his Court application, on the view most beneficial to the Applicant, the period lasted approximately four months from January to April 2018.
I find that the Applicant’s ‘homelessness’ does not explain the delay in filing the material for the following reasons. First, on a view most favourable for the Applicant, any period during which the Applicant might have been without accommodation is incredibly short. Second, the Applicant had accommodation with some of his Iranian acquaintances either immediately after, or shortly after, his eviction. He was therefore not without accommodation, or homeless in the sense of having to sleep rough. Third, the period that he was with his Iranian acquaintances was a period of approximately four months in what is an 18 month delay. Fourth, the Applicant provides no information as to how the circumstances of living with his Iranian acquaintances prevented him from pursuing his Application in this Court. Fifth, the period of homelessness occurred seven months after the decision of the Authority. Sixth, the period of homelessness occurred four months after the Applicant met with VLA, and received instructions on how to complete the Court application forms.
For these reasons, I do not accept that the Applicant’s homelessness adequately explains the delay in filing.
The effects of Immigration Detention
In May 2018, the Applicant was detained at the Maribyrnong Immigration Detention Centre. He says that detention was a ‘big shock’ and that he had ‘never been locked up before’. He says that he was anxious and depressed in detention, felt isolated, was focused on surviving in detention, and not focused on filing an application in this Court. He also says that he made a number of attempts to complete forms but could not do so because of the ‘mental strain’ and because of his lack of English.
The Applicant’s statement that he had ‘never been locked up before’ is not accurate. His Counsel conceded that the Applicant had been in prison in Iran. Nevertheless, I accept that detention would have come as a shock to the Applicant, that he would have felt anxious and depressed, and would have been focused on surviving, or getting through, the detention.
I am prepared to accept, on a view most favourable to the Applicant, that the shock of detention and the strain that comes with it may have meant that the Applicant was not able complete the Court forms in the immediate aftermath of being detained. I do not accept, however, that the fact of detention or the impact it had on the Applicant’s mental state provides an explanation for the delay in filing. I hold this view for the following reasons. First, the Applicant’s detention occurred 12 months after he was informed of the decision of the Authority. He had, as I have previously noted, already had the benefit of advice from VLA, and had been sent the Court forms with instructions on how to complete them. All of this had taken place within three months of the decision of the Authority. Second, the Applicant had the benefit of further legal advice from VLA while in detention on 11 May 2018. He was sent the Court forms again on that day and was told that he needed to explain his delay to the Court. Despite that advice, the Applicant did not file the forms. Attempts by VLA to contact the Applicant in July and August 2018 were unsuccessful. It therefore appears that while the Applicant was isolated, he was not without the benefit of proactive attempts by VLA to assist him with his case. Third, while one can accept that the Applicant was in shock in the aftermath of his detention, he did not file the Court application for a further 6 to 7 months. In this period, he was sent the forms, as I have noted, in May 2018 and again in September 2018, yet filing with the Court did not occur until December 2018. Fourth, the Applicant actually did manage to file the forms in December 2018 while in detention. Fifth, the Applicant has produced no medical evidence to say that his mental state was such that he was mentally incapable of completing the forms.
For the above reasons, I do not accept that the Applicant’s detention, or the effects of detention on his mental well-being, provide an explanation for the Applicant’s failure to pursue his claim.
The Applicant’s lack of English language skills
The Applicant deposes to his very limited ability to read English. I accept that his English ability is limited. That an applicant has limited English language skills is a matter that requires some consideration. It would certainly explain a short delay. The question in this matter is whether it explains some or all of an 18 month delay.
I find that the Applicant’s lack of English language skills do not provide an explanation as to why it took the Applicant 18 months to file his application. I have come to this conclusion for the following reasons. First, the Applicant’s lack of English skills did not prevent him from understanding that the Authority had made a decision, and that he needed to act on that. He appears to have very quickly, consulted with Refugee Legal, and within three months from the date of the decision spoken directly to VLA and obtained general advice from them. By this time, the Applicant knew what he need to do. He had had the benefit of advice. Second, while the Applicant’s English was limited, he is not completely without an understanding written English. He was, for example, in the lead up to the Authority making its decision, able to request an extension of time, apparently in English: see Court Book 254. Third, the Applicant despite his English language skills, was apparently able to navigate other arms of government. For example, he deposes to being in receipt of benefits from Centrelink. That is instructive. In order to do those things, I infer that the Applicant either had to have some understanding of English, or assistance from others with written English, or knowledge as to how to ask for assistance with English from others.
It is not apparent, when these matters are considered, why the Applicant could not or did not ask for some assistance from someone conversant in English to help him complete the Court forms during the entire 15 month period from when he first received those forms. The Applicant in his affidavit provides no explanation or account of any attempt to have anyone conversant with English (other than VLA) complete the form.
Finally, I note that lack of English language skills are a feature of applicants in this jurisdiction and that many others in the Applicant’s position are able to file very basic applications in this Court which are sufficient to initiate the review process in this Court.
In addition to the matters above, the observations of Judge Lucev in WZAUN on the emphasis to be placed on applicant’s lack of English language skills in this jurisdiction are also pertinent. At paragraph [29], Judge Lucev states as follows:
‘Insofar as the applicant complains that he does not understand English, that is not uncommon, and indeed probably more common than not, in applications to this Court for judicial review of decisions of the Tribunal concerning protection visa applications involving self-represented litigants. In relation to the applicant’s English language skills there is no evidence that the applicant is in any different a position to other applicants around Australia for judicial review of Tribunal decisions under the Migration Act, the vast majority of whom file their judicial review applications under s.476 of the Migration Act with this Court within time. Notwithstanding the fact that the applicant has limited English ability, and did not initially have the services of a lawyer, and that these are matters which require some consideration: MZZIV at [5] per Mortimer J; ADN15 at [29] per Charlesworth J, they do not of themselves explain the delay, and the Court nevertheless needs to be cautious in placing too much reliance on matters like these lest too ready an acceptance of them makes an extension of time the rule, and not the exception, on prerogative relief applications, contrary to what was said by the High Court in Brisbane South Regional Health Authority CLR at 553 per McHugh J. Further, it needs to be remembered that upon the expiry of the time for the issue of a writ against a decision of the Tribunal, the Minister has a vested right to retain the benefit of that decision: Marks at [17] per McHugh J. In this case that is a very significant factor where the delay in making the Proposed Judicial Review Application is 572 days, being more than 16 times the statutory limitation period. That is a very significant factor when regard is had to the fact that it appears the applicant was made aware by the lawyers who represented him at the Tribunal Hearing of the time limitation period, or at least the availability of judicial review in this Court, from 17 December 2012 (just five days after the making of the Tribunal Decision): Applicant’s Affidavit at [10]-[12] and Annexure A. Likewise, the advice from Law Access was that the applicant could file an application himself (albeit that it referred to the Federal Court rather than this Court), and that advice was given on 3 May 2013: Applicant’s Affidavit at [15]-[16] at Annexure B.’
I respectfully agree with Judge Lucev’s observations. In my view, they apply equally in a case such as this given the extent of the delay, and given the Applicant had early on received advice from VLA, along with the Court application forms and instructions on how to complete them.
For these reasons, I do not accept the Applicant’s lack of English language skills as an explanation for the delay.
Do all of the circumstances in combination explain the delay?
In a matter such as this, it is appropriate to step back and consider whether all of the matters raised by the Applicant in total provide an explanation for the delay.
When all of the matters which the Applicant points to are considered in combination, I remain of the view that the Applicant has not provided an adequate explanation for the delay. I am of that view not only because I have rejected each of the reasons individually, but also because the Applicant’s affidavit material discloses lengthy periods of inactivity without any sufficient explanation for that inactivity. This includes the following:
a)The Applicant spoke to VLA in late August 2017 and obtained advice, forms and instructions less than three months after the decision of the Authority. No contact occurred between the Applicant and VLA in the period between August 2017 and 9 November 2017, and even then, the contact was in writing and initiated not by the Applicant, but by VLA. The Applicant was not evicted from his home until January 2018. There is no explanation by the Applicant for the period of inactivity between late August 2017 and the end of December 2017, a period of four months, other than his back injury, potentially one attempt to evict him from his home at this time and his poor English language skills. As I have indicated, the back injury did not prevent the Applicant from attending the VLA offices in person and receiving advice. The attempt at eviction in this period of time was unsuccessful. The Applicant’s poor English may have excused some delay, but not all of it given the matters I have adverted to earlier. This was a period, therefore when the Applicant took no steps to further his claim.
b)There is then the period from January 2018 to May 2018. This is a further four month period. The Applicant did not seek to initiate any contact with VLA, or it appears, anyone else, to help him with the Court application forms that had been provided to him in August 2017, until he was detained. The Applicant’s explanations for delay in this period are that he was homeless, that he lacked English language skills, and that he had a back injury. I have dealt with each of these matters above. The alleged homelessness was the predominant feature of this period. As I have indicated, any period of sleeping rough, if it existed, was short with the Applicant staying with his acquaintances. These matters collectively do not provide an explanation for the four months delay during this period. The Applicant does not assert any other reason as to why he took no action in this period. Again, this was a period where the Applicant took no steps to further his claim.
c)There is then the period from the time the Applicant was detained in May 2018 to the time he filed the Application on 3 December 2018. In this period, the Applicant says the effects of detention on his mental health and focus, and his lack of English language skills, prevented him from filing the Application. I have dealt with these matters earlier. The fact of detention, as I have indicated above, and the effect it had on the Applicant, is something that might explain a delay of a month or two. It does not, however, explain a delay of 6 to 7 months in filing the application, particularly in circumstances where VLA sent Court forms to the Applicant twice. No other reason is advanced by the Applicant for the delay in this period. It is another period where the Applicant appears to have sat on his hands.
For all of the reasons above, I find the Applicant does not have an explanation for the delay.
Prejudice to the Respondents
The next matter that I am required to consider is whether there is any prejudice to the Minister. The Minister did not assert that he would suffer from any prejudice. In my view, any prejudice that the Minister might suffer could be cured by an order for costs. I therefore will not have regard to any prejudice to the Minister in determining the application.
In the interests of the administration of justice
As I have noted earlier in these reasons, the use of the phrase ‘in the interests of the administration of justice’ in section 477(2) of the Act imports an obligation on the Court to consider matters that are broader than just those matters set out in Hunter Valley Developments. It is appropriate to note at the outset that the ‘interests of the administration of justice’ are not the same as the interests of a party. As Gleeson CJ, McHugh and Heydon JJ said at [15] in BHP Billiton Ltd v Schultz (2004) 221 CLR 400, in the context of a cross-vesting application:
‘The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s 5 is not disembodied, or divorced from practical reality.’
In the context of the present matter, matters that arise for consideration include that there is no right of appeal from this decision to the Federal Court of Australia, the need for finality in disputes, case management considerations in this Court given its extensive and busy list, and the broader effect of any decision.
The matters above are not ones that any party addressed me on. I am required to consider them, however, having regard to the comments of superior court judges such as Mortimer J in MZABP and I do so now briefly below.
There is not any right of appeal for an applicant from a decision of this Court to refuse to extend time under section 477(2) of the Act: see section 476A(3) of the Act. That is a matter of some import, and one which tends to favour the grant of an extension of time.
The need for finality of disputes is important. The Applicant’s delays here, without explanation, are extensive and, to an extent, undermine the principle of finality. However, that consideration is balanced by the fact that there is no prejudice to the Minister. I therefore regard this a neutral consideration in the context of this case.
It is well accepted and understood that this Court is a busy Court where the lists are long. This case is but one example of the lengths of the lists in this Court, with the application for judicial review having been filed on 3 December 2018, and the matter not coming on for hearing until one year later.
This is a matter in which, consistent with the Court’s practice in these matters, the Court has heard both the extension of time application as well as argument on the substantive matters. Ordinarily, no additional court hearing time would be needed if the extension were granted. However, in this matter, there is a proceeding before the Full Court of the Federal Court which may affect the ultimate outcome. I discuss this further below. The consequences of this is that a further Court hearing in this matter cannot be ruled out. The parties may wish to address the Court on that matter, or the Court may ask to be addressed, depending on the decision of the Full Court.
The final matter that falls for consideration is the broader effect of any decision on applicants in this Court. It is accepted that there is an ever increasing backlog of migration cases in this Court, as well as in other courts and Tribunals. The Court’s 2018/2019 annual report discloses 5,591 matters were filed in the migration jurisdiction, with 3,784 being cleared that year, meaning the Court accumulated 1,807 cases which were not finalised in that year alone. That adds to the backlog that already exists. The backlog means litigants are waiting long times to access justice. In that context, the Court must pay close attention to whether it is ‘in the interests of the administration of justice’ to permit an application that is approximately 18 months out of time to be heard, when the statutory limit is 35 days and there is not an adequate explanation for the delay. The individual circumstances of litigants are, of course, important. I also must consider, however, what litigants and potential litigants in this jurisdiction would take from a decision where I permit an extension time in circumstances where, as I have found above, the delay is an exceedingly long one and the reasons for it are not explained. Permitting an application in those circumstances could well produce the result that the Courts and Tribunals charged with administering justice in this jurisdiction become more overborne than what they already are. Further, permitting late applications so far out of time means other litigants, who have filed within time, face a longer queue. It is in the interests of the administration of justice that such an outcome be avoided.
The merits of the substantive application
I turn finally to deal with the merits of the substantive application. The Court’s task here, as I have mentioned previously, is to assess whether the substantive case is ‘sufficiently arguable’. A judge should not travel beyond an examination of the grounds at an impressionistic level. Rather, 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 Mortimer J at [62] – [63] of MZABP. It is not necessary for an applicant to positively establish that he or she will succeed on the proposed to judicial review application: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [48] and [102].
I now turn to deal with each of the grounds of review in light of the principles above. The Application raises two grounds of review. These are as follows:
‘1. The Immigration Assessment Authority lacked jurisdiction in respect of the Minister’s delegate’s decision concerning [the Applicant] because he was not a ‘fast track applicant’ and the Authority only has jurisdiction in respect of such people under the Act.
2. Alternatively, the Authority erred by merely reciting (at [10]) and then failing to consider, in the relevant legal sense, a significant and clearly articulated claim raised by the Applicant, namely that he was at risk of harm because Iran is an Islamic state and he ‘had small parties every now and again’ and he drank alcohol including on a significant public holiday.’
Much of the focus of the argument before me concerned ground one above. There is little doubt that the point raised by ground one, if it were to be accepted, is a substantive one. The consequence for the Applicant (and no doubt many others in his shoes in other cases) is that if the ground were to be upheld, the Applicant would not be regarded as a ‘fast track applicant’ for the purposes of the Act. This would produce the result that the Applicant was entitled to a review of the delegate’s decision by the Administrative Appeals Tribunal under Part 5 of the Act, rather than review by the Authority as part of the fast track process established under the Act.
The point that is raised by the Applicant is, therefore, one of substance to the operation of the Act, and the schemes of review contained within it. The significance of the point raised by the Applicant to his case, or any broader significance to the operation of the Act or other litigants, is not, however, what the Court is required to consider. Rather, the Court is required to consider whether the argument sought to be advanced by the Applicant is sufficiently arguable.
The point raised by ground one is principally one relating to the proper construction of the phrase ‘fast track applicant’ and to related provisions of the Act. In summary, the Applicant’s argument is as follows:
a)The Authority only has jurisdiction in respect of persons who fall within the definition of ‘fast track applicant’ at section 5 of the Act. Relevantly, that definition stipulates that a ‘fast track applicant’ means a person who ‘is’ an ‘unauthorised maritime arrival’. The term ‘is’ has some significance within the definition of ‘fast track applicant’.
b)The term ‘unauthorised maritime arrival’ is defined in section 5AA of the Act. It too, in the opening words, refers to a person who ‘is’ an unauthorised maritime arrival.
c)The use of the word ‘is’ in the definition of ‘fast track applicant’ is important. It means, when one has regard to the definitions of ‘fast track reviewable decision’ (section 473BB) and ‘fast track decision’ (section 5), that a fast track applicant must be a person who is an unauthorised maritime arrival at the time of the protection visa refusal decision or possibly, at the time the decision is referred to the Authority. It is significant, according to the Applicant, that when Parliament defined the term ‘fast track applicant’ it did not use the words ‘a person who is or was an unauthorised maritime arrival’. This can be compared to section 198AJ of the Act where the Parliament used words to make clear that section 198AJ is directed to a ‘person who is or was’ an unauthorised maritime arrival.
d)At the time the decision was made on 10 November 2016 to refuse the Applicant a protection visa, he was subject to a bridging visa that had been granted on 16 May 2016. He was therefore, for the purposes of the Act, a lawful non-citizen at the time the decision was made to refuse to grant the Visa;
e)A person who is a ‘lawful non-citizen’ cannot at law also be an ‘unauthorised maritime arrival’. Support for this proposition can be found in the case of DBE17 v Commonwealth of Australia [2018] FCA 1307 (‘DBE17’).
f)Accordingly, the Applicant was not an unauthorised maritime arrival nor a fast track applicant at the time he was refused the protection visa. It therefore follows that the Authority had no jurisdiction in respect of him, and that everything that the Authority did thereafter was beyond power.
The Minister submits that ground one is not sufficiently arguable for the following reasons:
a)The Applicant’s emphasis on the present tense and the use of the word ‘is’ in the definition of ‘fast track applicant’ is misplaced. The Act contains a separate definition of ‘unauthorised maritime arrival’ in section 5AA. Satisfaction of the conditions set out within section 5AA determines whether a person ‘is’ a ‘fast track applicant’, not the use of the word ‘is’ in the definition of ‘fast track applicant’.
b)The conditions in section 5AA do not depend upon any particular tense used in the section or a particular state of affairs. The relevant conditions are whether the person entered Australia by sea, and the person became an unlawful non-citizen because of that entry.
c)Whether a person subsequently became the holder of a bridging visa does not alter the facts that need to be established for the purposes of section 5AA.
d)There are obiter dicta comments of the Full Court of the Federal Court that a person can become a lawful non-citizen within the meaning of section 13 of the Act, but not be relieved of the status of being an ‘unauthorised maritime arrival’: see CLM18 v Minister for Home Affairs [2019] FCAFC 170 (‘CLM18’) at [4].
e)The construction contended for by the Minister is supported by a reading of the Act in full and in its proper context: see for example section 46A(1) of the Act, which contemplates an application for a visa being made by an unauthorised maritime arrival who also holds a bridging visa.
f)The construction contended for by the Minister is supported by the demonstrated intention of the Parliament.
g)The Applicant’s argument would produce the result that the Minister could not grant any form of temporary visa to an unauthorised maritime arrival without excising the person from the fast track procedure as contemplated by the Act. This is contrary to the demonstrated objective of the amendments to Part 7AA of the Act.
When the competing considerations of the parties are assessed, I am of the view that the argument sought to be advanced by the Applicant under ground one is sufficiently arguable.
It can be seen that the emphasis placed by the Applicant on the use of the different tenses in the definition of ‘fast track applicant’ bears some scrutiny. It can likewise be seen that the Minister’s answer to this – that a person will be an unauthorised maritime arrival only if they meet the specific factual conditions set out within that definition – is an argument that is equally available. The competing contentions were eloquently advanced before me, and both appear available.
Each of the parties are able to call, in aid of their competing constructions, other provisions of the Act to support their respective contentions. That is not necessarily unusual for a piece of legislation like the Act, which has been in existence for many years and which has been frequently amended.
Further, each side of the argument is able to point to existing authority of the Federal Court of Australia that, it is contended, supports their respective constructions. The Applicant points to the decision of Mortimer J in DBE17 at [44] in support of the proposition he advances that an applicant cannot be both unlawful maritime arrival and a lawful non-citizen. The Respondent refers to the decision of CLM18 at [2]-[3] to support the proposition that, for the purposes of the Act, a person can acquire a status as both an unlawful non-citizen and an unauthorised maritime arrival. Each of those authorities would, if ratio, be binding on this Court or at the very least, highly persuasive, if they are simply statements of obiter dicta.
I am fortified in my view that this is a matter that is sufficiently arguable by the following. Counsel for the Applicant informed the Court that Middleton J in the Federal Court of Australia, when confronted with the argument above, referred it to a hearing before a Full Court of the Federal Court of Australia. That occurred, one assumes, not only because the matter has the significance I referred to earlier, but also because Middleton J felt the case was arguable. Had he not done so, it would be reasonable to infer he would have dealt with it himself.
The second ground of review raised by the Applicant is as follows. The Authority fell into error by failing to consider a claim raised by the Applicant that he was at risk of harm in Iran because Iran is an Islamic state, and he had small parties every now and again, and drank alcohol.
The Applicant’s argument in relation to this ground is as follows:
a)At his irregular maritime arrival interview, he referred to the fact that others who had similar claims as him were taken to a government prison and never returned;
b)During his interview with the delegate, when asked whether he had other reasons for fearing to return to Iran, the Applicant referred to parties he held, his drinking of alcohol, and that pictures of such were on his laptop;
c)Country information before the delegate referred to a British-Iranian businessman being sentenced to prison for alcohol possession;
d)The Authority recited the Applicant’s claim above, but did not engage with it in its reasons.
The Applicant relied on Minister for Home Affairs v Omar [2019] FCAFC 188 to support the submission that the claims had not been properly considered.
The Minister accepted, as a matter of law, that failure to consider claim may amount to jurisdictional error. The Minister also relied on ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47] for the proposition that an inference of failing to consider a claim is one that ought not ‘too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point’.
The Minister’s contention is that this claim was dealt with because a factual premise necessary to support the claim was rejected. In this respect, the Minister points to the articulation of the claim in full as it occurred before the delegate (see Court Book 208) and says it can be seen from that extract that the nature of the claim around drinking alcohol and photographs of this on a laptop arose from a situation where the Applicant claimed his home had been raided. The Authority, however, did not accept that the Applicant’s home was raided: see paragraph [23] of the decision of the Authority. Nor did the Authority accept that the Applicant’s lack of observance of Islam would come to the attention of the Iranian authorities: see paragraph [32] of the decision of the Authority. In those circumstances, it is submitted the claim was dealt with.
Questions as to whether a decision-maker properly considered and engaged with a claim, or dealt with it, ordinarily involve assessments of degree. So much can be seen when courts have to apply concepts such as ‘not too readily’ drawn, or whether a submission is ‘of substance’. When this background is considered, in my view, a court needs to be cautious before it dismisses an argument as being not ‘sufficiently arguable’.
In the present matter, I am able to readily observe and understand the Applicant’s argument. My view, however, is when the findings of the Authority are looked at in context, and when the matter is assessed at an impressionistic level, that this particular ground of review is not sufficiently arguable. I tend to prefer the view articulated by the Minister.
When all of the above matters are considered, I conclude as follows:
a)the length of the delay in bringing the Application is such that the delay alone in this case is a sufficient basis to refuse the application to extend time;
b)the length of the delay in bringing the application, taken together with the failure to adequately explain the delay, is also a sufficient basis to refuse the application to extend time;
c)the length of the delay in bringing the application, taken together with the failure to adequately explain the delay, and the other considerations pertaining to the interests of the administration of justice that I have referred to at paragraphs [58] to [65], is also a sufficient basis to refuse the application to extend time.
Ground 1 of the grounds of review is sufficiently arguable. In my view however, that aspect does not, when considered in conjunction with the matters above, persuade me to exercise the discretion under section 477(2) of the Act. It is simply one matter that I must consider alongside the matters I have referred to above. It does not outweigh those other matters. In my view, as I have indicated, those matters provide an independently sufficient basis to dispose of the Application.
Accordingly, the application to extend time will be dismissed.
Costs
On 3 December 2019, the hearing was adjourned to allow the Applicant to file further affidavit material. An order was made on that day that the Applicant pay the Minster’s costs thrown away of the day, such amount to be fixed at the final hearing.
At the conclusion of the hearing, the parties were requested to discuss the issue of costs, including the costs thrown away on 3 December 2019 and, if they agreed, email chambers with their agreed position. If they did not agree, each party was requested to email chambers with their position regarding costs.
On 18 May 2020, the Minister’s solicitor emailed my chambers, with the agreement of the Applicant, and confirmed that the parties agreed to the following:
a)The Minister’s costs thrown away from 3 December 2019 were to be fixed in the sum of $3,375.50;
b)The Minister, if successful, seeks costs of $7,467 plus $3,375.50 totalling $10,842.50;
c)The Applicant, if successful, seeks costs of $7,467 minus $3,375.50 totalling $4,091.50.
I find it appropriate to award costs to the Minister in this matter. There will be an order that the Applicant pay the Minister’s costs of $10,842.50.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 10 June 2020
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