GOW18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 20
•16 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GOW18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 20
File number(s): ADG 508 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 16 January 2025 Catchwords: MIGRATION – Proposed judicial review application – decision of Immigration Assessment Authority – extension of time required – where no grounds for application included in proposed judicial review application – possible grounds appearing in affidavit material – possible grounds raised at hearing – whether sufficiently arguable case of jurisdictional error
PRACTICE AND PROCEDURE – Extension of time application for filing of proposed judicial review application – considerations – mandatory consideration as to whether in the interests of administration of justice to grant extension of time – other considerations – length of delay – where minimal delay – explanation for delay – whether explanation acceptable or plausible – whether prejudice – whether sufficiently arguable case of jurisdictional error
EVIDENCE - whether affidavit evidence admissible – where evidence not before Delegate or the Immigration Assessment Authority – where evidence goes to impermissible merits review – where some evidence post-dates decision of Immigration Assessment Authority
EVIDENCE – applicant not cross-examined on affidavit evidence explaining delay – evidence of explanation of delay accepted
Legislation: Migration Act 1958 (Cth) ss 473CB, 473DC, 473DD, 474, 476, 477,
Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka)
Cases cited: ACL17 v Minister for Home Affairs & Anor [2019] HCASL 318
ACL17 v Minister for Home Affairs [2019] FCA 753; (2019) 165 ALD 301
ACL17 v Minister for Immigration and Border Protection [2018] FCCA 3191
ADH17 v Minister for Immigration and Border Protection [2020] FCA 53
ADN15 v Minister for Immigration and Border Protection [2016] FCA 810
AML18 v Minister for Immigration [2020] FCCA 525
AML18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 28
Aporo v Minister for Immigration & Citizenship [2009] FCAFC 123; (2009) 113 ALD 46
Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196
AVJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1056
BDY15 v Minister for Immigration [2018] FCCA 1327
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1
BZABK v Minister for Immigration and Citizenship [2012] FCA 774; (2012) 205 FCR 83
CEV15 v Minister for Immigration and Border Protection [2017] FCA 976
CMI17 v Minister for Home Affairs [2019] FCA 1193
CNM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1358
CUS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 293; (2022) 369 FLR 305
DBD16 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 137
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610; (2024) 418 ALR 152
Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23; (2017) 350 ALR 47
Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224
Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547
Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11
MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411
Shrestha v Minister for Immigration & Anor [2013] FCCA 710
SZGRK v Minister for Immigration and Citizenship [2010] FCA 153
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tesic v Minister for Immigration and Border Protection [2017] HCASL 271
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579; (2022) 96 ALJR 819; (2022) 403 ALR 604; (2022) 178 ALD 573
VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291; (2005) 87 ALD 333
WZATI v Minister for Immigration and Border Protection [2015] FCA 923
Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of last submission/s: 15 July 2024 Date of hearing: 24 June and 15 July 2024 Place: Perth Counsel for the Applicant: In person, with the assistance of an interpreter Counsel for the First Respondent: Ms M Pappas Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 508 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GOW18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
16 JANUARY 2025
THE COURT ORDERS THAT:
1.The Applicant’s application dated 19 December 2018 for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”) in which to file an application under s 476 of the Migration Act be dismissed.
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 LUCEV
INTRODUCTION
Before the Court is an application for an extension of time (“Extension of Time Application”) under s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”) to file an application for judicial review (“Proposed Judicial Review Application”) of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) affirming a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) not to grant the applicant, GOW18, a Safe Haven Enterprise Vise (“SHE Visa”).
All references to the Migration Act in these Reasons for Judgment are to the provisions therein as they were at the time of the Authority Decision.
BACKGROUND
Timeline up to the time of the Authority Decision
Briefly, the timeline of relevant events is as follows:
(a)GOW18 is a Sri Lankan national from the Mannar District of Sri Lanka’s Northern Province: Court Book (“CB”) 168-169;
(b)GOW18 arrived in Australia as an unauthorised maritime arrival on 3 November 2012: CB 171;
(c)on 7 September 2016 GOW18, with the assistance of a migration agent, lodged his SHE Visa application: CB 59-101;
(d)GOW18 attended an interview with the Delegate on 19 June 2018 (“Delegate’s Interview”): CB 134;
(e)in the Delegate’s Decision on 22 June 2018 the Delegate refused to grant GOW18 the SHE Visa: CB 168-181;
(f)on 27 June 2018 the matter was referred to the Authority: CB 183-184; and
(g)on 12 November 2018 the Authority Decision affirmed the Delegate’s Decision not to grant GOW18 the SHE Visa: CB 201-216.
Protection claims
The protection claims made by GOW18 before the Delegate and the Authority were as follows:
(a)he claims to be a fisherman of Tamil ethnicity and Christian religion: CB 169;
(b)he claims that in 2012 the Sri Lankan Navy (“SLN”) started making inquiries in the Mannar District regarding persons who had supported the Liberation Tigers of Tamil Elam (“LTTE”): CB 103, 169 and 202. A friend (“F”), with whom GOW18 had worked on a fishing boat, had provided logistical support to the LTTE and one day failed to show up to work. Three days after F failed to show up to work, the SLN visited GOW18 at his boat and he was arrested and detained. He was then interrogated and mistreated for 6 hours before being released. He was advised to return to face further questioning: CB 202;
(c)he feared he would face further mistreatment at the hands of the SLN and fled Sri Lanka: CB 169 and 203; and
(d)in summary, GOW18 claimed to fear harm on account of his ethnicity, political opinion and imputed links to the LTTE, and on account of his status as a failed asylum seeker who departed Sri Lanka illegally.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)accepted that GOW18 was a Sri Lankan from the Mannar District of the Northern Province of Sri Lanka, and that he was of the Christian faith: CB 203 at [5]-[6];
(b)accepted that GOW18’s family fled Sri Lanka in 1990 and lived in India as refugees, before returning to Sri Lanka in 2003: CB 203 at [5]-[7];
(c)accepted that GOW18 worked as a fisherman, was detained and questioned in relation to F, and mistreated in 2012: CB 205-206 at [19];
(d)accepted that despite his ethnicity and links to F, GOW18 had never been a supporter of the LTTE: CB 205-206 at [19];
(e)was satisfied that GOW18 would likely have faced further questioning had he remained in Sri Lanka, but was not satisfied that he was imputed to be a member of the LTTE: CB 206 at [21];
(f)found GOW18’s claims that the SLN had inquired as to his location to be vague and unconvincing, and that even if these claims were accepted, significant time had passed since the SLN inquired as to GOW18’s whereabouts, and accordingly it was not satisfied that GOW18 would be of any present interest to the Sri Lankan authorities: CB 206 at [23];
(g)accepted that GOW18 had departed Sri Lanka illegally: CB 206 at [22];
(h)summarised the country information before it in noting that the situation for Tamils in Sri Lanka has significantly improved, and that unless individuals were perceived to have had significant involvement with the LTTE, they would not be perceived to continue to have LTTE links: CB 207-208 at [28]-[32];
(i)noted that despite GOW18’s friendship with F, who it accepted was suspected to have been involved with the LTTE, GOW18 was not himself charged with any offences related to the LTTE: CB 208 at [32];
(j)accepted that, given his illegal departure, GOW18 would be subject to charges arising from a breach of Sri Lankan laws: CB 209 at [38], and that he would be subject to routine investigation including potential visitation by authorities upon his return to the Northern Province of Sri Lanka: CB 211 at [44], but was satisfied that GOW18 was not of any adverse interest to the authorities and so did not face a real chance of persecution arising from the circumstances of returnee processing: CB 208-211 at [34]-[44]; and
(k)found that GOW18 did not face a real chance of harm or persecution upon return, and concluded that GOW18 did not satisfy the criteria for the SHE Visa on refugee or complementary protection grounds: CB 208, 211 and 212 at [33], [44] and [50].
THE EXTENSION OF TIME APPLICATION
History
In relation to the Extension of Time Application the Court notes that:
(a)on 19 December 2018 GOW18 lodged the Proposed Judicial Review Application two days outside of the 35 day time limit prescribed under s 477(1) of the Migration Act. The Proposed Judicial Review Application did not seek an extension of time and does not contain any grounds for seeking judicial review of the Authority Decision;
(b)on 13 February 2019 a Registrar of the Court made orders (“Registrar’s February 2019 Orders”), including the following:
2The Applicant has leave to file and serve any amended application by 26 April 2019.
3The Applicant has leave to file and serve such further material, including the transcript of the proceeding before the Second Respondent that they may rely on at hearing by 26 April 2019.
4 The application be listed for hearing on a date and time to be advised.
5The matter be listed for further directions hearing on 12 June 2020 at 9.30 am.
(c)no amended application of any kind or further material was filed by GOW18 pursuant to the Registrar’s February 2019 Orders;
(d)for reasons which are not readily apparent from the file the parties were advised by email from the Adelaide Registry of the Court on 2 January 2020 that the directions hearing on 12 June 2020 had been “vacated” and that they would be “notified in due course of a new listing date”;
(e)more than three years then passed until the matter was docketed to the presently presiding Judge in early May 2023 and listed for a directions hearing on 24 May 2023;
(f)at the directions hearing on 24 May 2023 the Court ordered that:
(i)the Proposed Judicial Review Application filed on 19 December 2018 be taken to be amended to provide that GOW18 applies for an extension of time under s 477(2) of the Migration Act (“Extension of Time Application”); and
(ii)adjourned the directions hearing to a further directions hearing on 30 June 2023;
(g)at the directions hearing on 30 June 2023 the Court:
(i)ordered that (“Court’s June 2023 Orders”):
(A)GOW18 file any amended Proposed Judicial Review Application, including any amended Extension of Time Application, further affidavits and an outline of submission by 15 March 2024; and
(B)the Minister file any amended response, affidavits in reply and an outline of submissions by 26 April 2024; and
(ii)explained to GOW18 the issues he had to deal with and explain in relation the Extension of Time Application (see Note B to the Court’s June 2023 Orders);
(h)on 13 March 2024 GOW18 filed an affidavit (“GOW18’s March 2024 Affidavit”) which:
(i)sought to explain the delay in commencing proceedings;
(ii)made further protection claims; and
(iii)raised an issue regarding the circumstances of the Delegate’s Interview;
(i)on 26 April 2024 the Minister filed an outline of submissions (“Minister’s Submissions”);
(j)at hearing on 24 June 2024 the Court heard oral submissions from the parties on the Extension of Time Application, and the Court made orders (“Court’s June 2024 Orders”) that:
1. The Applicant file and serve those reports and documents referred to in his submissions today by 1 July 2024.
2. The hearing be adjourned to 2:00pm AWST/ 3:30pm ACST on 15 July 2024.
(k)on 15 July 2024 the hearing resumed and the Court heard further oral submissions from the parties, and reserved judgment.
GOW18’s Affidavits
GOW18’s March 2024 Affidavit
In GOW18’s March 2024 Affidavit at [1]-[12] GOW18 said that:
1.With utmost respect and humility, I come before this honourable court to extend my sincerest apologies for the delay in filing the originating application. As a citizen from a non-English speaking country, I humbly acknowledge my limited proficiency in English, having only completed studies up to Year 10 in my native language, Tamil, due to displacement during the war.
2.Following the refusal of my SHEV Application, I struggled to find someone to assist me with filling out my originating application. When I was left wondering how to proceed, I received a contact for a person named Peter through my friend.
3.Reflecting upon the circumstances of my engagement with Peter, I acknowledge a certain level of uncertainty. Despite his reluctance to disclose personal details and consistent use of an unknown number for communication, I acquiesced to meet him at a shopping centre. During our encounter, I entrusted him with copies of my identity documents and shared the originating application deadline with him.
4.Peter requested a payment of $1000 in cash to assist with the originating application process. Despite my suggestion to provide his bank details for a transaction, he politely declined, expressing his reluctance to share his personal banking information with others. Respecting his preference, I complied with his request and made the payment in cash as per his instructions. I complied, and Peter assured me of his commitment to submitting the originating application before the deadline, promising to keep me promptly informed of the progress.
5.I did not receive any phone calls from Peter, as he had not provided his phone number to me despite having obtained mine. When I requested his contract information, he explained that it was confidential and expressed concerns about potential consequences if his involvement in assisting with the originating application became known.
6.I was completely unaware of this situation, and I had wholeheartedly believed Peter’s assurances. I hadn’t known that until I received a call from the Immigration Department, on the very day of my official deadline, that I learned my originating application had not been submitted. The Immigration officer informed me of the deadline matter. Upon receiving the call, I requested the assistance of an interpreter to fully understand the information being conveyed.
7.Upon clarification from the interpreter, I conveyed to the Immigration officer that I had been under the impression that Peter had already submitted the application on my behalf.
8.When questioned by the interpreter, I responded that the individual who assisted me with the originating application did not provide me with a copy of it. Additionally, I mentioned that I did not possess Peter’s phone number.
9.Following the interpreter’s advice, I was informed that I should submit my application without delay. The interpreter also provided guidance that I could seek assistance from a Justice of the Peace to facilitate the application process.
10.Despite several attempts to contact Peter proving unsuccessful, my friend was unable to provide complete details about him.
11.Upon realizing the urgency of my situation, I promptly reached out to a Tamil Justice of the Peace and explained my predicament. Despite their willingness to assist, regrettably, I was unable to submit the originating application by the closing date. Consequently, I submitted it one day late, early the next morning, directly to the Court.
12.I wish to express that my actions were not intended to disparage the Immigration department, but rather stemmed from my own ignorance and limited proficiency in English. With deep humility, I earnestly request your forgiveness for the inadvertent submission of my application one day past the deadline.
In GOW18’s March 2024 Affidavit at [13]-[21] GOW18 said that:
13. I respectfully notify the court of changes to my personal circumstances.
14.Following the refusal of my SHEV Application, I got married on November 15, 2020. My wife and I now have one daughter together, … [daughter’s name deleted], born in Australia on … [in] 2021.
15.The Immigration Department added … [daughter’s name deleted] to my visa on June 27, 2023. Attached herewith are true copies of my Marriage Certificate (Annexure “PRK-1”), … [daughter’s name deleted] birth certificate (Annexure “PRK-2”), and the notification of the Bridging Visa E grant (Annexure “PRK-3”), for your esteemed observation.
…
16.I humbly request the esteemed Judge’s permission to elucidate why returning to my homeland with my two-year-old daughter is not feasible.
17.I wish to acknowledge the reasons previously shared for my inability to return to Sri Lanka. However, I must humbly convey that a new situation has arisen, rendering it impossible for me to take my daughter with me to Sri Lanka.
18.I got into inter-caste and inter-religion marriage.
19.Due to this marriage, both my daughter and I find ourselves in a situation where we are facing threats to our lives.
20.I respectfully urge the court to consider my daughter’s future and graciously afford me the opportunity to present my current predicament before the esteemed judge of the court.
21.I humbly seek your gracious permission. I sincerely apologize for any inconvenience caused to the court.
In GOW18’s March 2024 Affidavit at [22]-[25] GOW18 said that:
22.I also wish to convey that the duration provided to me during the interview was regrettably not sufficient for me to adequately address the questions posed by the interviewers.
23.I would like to kindly express that I felt I was not given sufficient time to fully articulate my concerns or present my case during the interview, as I relied on the assistance of an interpreter to communicate my responses. I was not aware beforehand that an interpreter would be brought in directly. I had the understanding that the interpreter would only be available via phone, as I believed this approach would maintain confidentiality regarding my identity.
24.Upon the interpreter's live appearance, I experienced a sense of fear and nervousness, which initially made me hesitant to disclose my genuine concerns. Since my arrival in Australia, my mother, father, and brothers have remained in Sri Lanka. During this time, the Sri Lankan Army has visited my home multiple times, inquiring about my whereabouts.
25.I refrained from disclosing certain details due to the concern that sharing information through the interpreter might potentially put my family members at risk of facing further troubles in my home country.
Objections to GOW18’s March 2024 Affidavit
In the Minister’s Submissions, and at hearing: Transcript, 24 June 2024 p 3, the Minister objected to the admissibility of [13]-[21] of GOW18’s March 2024 Affidavit, submitting that the further claims for protection made therein were not able be considered by the Court as they were not before the Delegate at the time of the Delegate’s Decision nor the Authority at the time of Authority Decision, and that the further claims for protection invited the Court to make new factual findings which is not permissible upon judicial review: Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23; (2017) 350 ALR 47 (“Tesic”) at [55] per Reeves, Robertson and Rangiah JJ, and therefore [13]-[21] of GOW18’s March 2024 Affidavit should not be admitted into evidence.
At [13]-[21] of GOW18’s March 2024 Affidavit GOW18 says that, following the Authority Decision, he married in November 2020, and that he and his wife subsequently had a daughter born in May 2021, and that because his marriage is inter-caste and inter-religion, it is not feasible for GOW18 or his daughter to return to Sri Lanka, and that they face threats to their lives. GOW18 asks the Court to consider his “daughter’s future’ and to “afford … [GOW18] the opportunity to present … [his] current predicament” to the Court: GOW18’s March 2024 Affidavit at [20].
At hearing: Transcript, 24 June 2024, pp 3-5, GOW18 submitted that he had received threatening calls from his wife’s siblings because, in addition to an inter-caste marriage, his wife had converted to Christianity, and there had been subsequent email threats to the life of GOW18 and the daughter of the marriage from the wife’s siblings.
At hearing the Court ruled the new evidence at [13]-[21] of GOW18’s March 2024 Affidavit to be inadmissible, and indicated that it would provide written reasons therefor as part of these Reasons for Judgment: Transcript, 24 June 2024, pp 5-6.
GOW18 seeks to have the Court consider the new evidence at [13]-[21] of GOW18’s March 2024 Affidavit for the purposes of this Court considering the substantive merit of the Proposed Judicial Review Application (insofar as the Court may do so upon the Extension of Time Application: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579; (2022) 96 ALJR 819; (2022) 403 ALR 604; (2022) 178 ALD 573 (“Katoa”) at [12]-[13] per Kiefel CJ, Gageler, Keane and Gleeson JJ). Courts considering judicial review applications generally resist the introduction of new evidence in judicial review proceedings. In MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 (“MZXLD”) at [10]-[11] per Gordon J the Federal Court observed as follows:
10The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities: see Waterford v The Commonwealth (1987) 163 CLR 54 at 77-78 (per Brennan J); Servos v Repatriation Commission (1995) FCR 377 at 385-386 (per Spender J); Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [29]-[31] (per Spender, Madgwick and Finkelstein JJ); and SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627 at [23] (per Cowdroy J). The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application. The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
11Additional evidence not before the RRT may, however, be admitted in exceptional cases where the material is required to make good a contention that raises a question of law, as distinct from a question of fact: see Phillips at [31] (per Spender, Madgwick and Finkelstein JJ); and see STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [15] and [21]-[22] (per Selway J); M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [30] (per Crennan J); NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24 at [54] (per Beaumont, Lindgren and Tamberlin JJ). A failure to provide a party with natural justice is a contention of the type that may, in the discretion of the reviewer, be subject to further material: Percerep v Minister for Immigration and Multicultural Affairs (1998) FCA 1088 at [15]-[16] (per Weinberg J).
No question of law arises in relation to the new evidence at [13]-[21] of GOW18’s March 2024 Affidavit.
In BDY15 v Minister for Immigration [2018] FCCA 1327 (“BDY15”) at [12] per Judge Lucev the then Federal Circuit Court observed that:
It is not open to the Court to admit new evidence or materials from the applicant for the purpose of asking the Court to disagree with a factual conclusion reached by the administrative decision-maker, and where the Court does admit such evidence it will engage in impermissible merits review: Minister for Immigration & Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23 (“Tesic”) at [53]-[55] per Reeves, Robertson and Rangiah JJ, contrary to the long-standing principle arising from Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. On the basis that what is actually sought by the applicant is merits review of the ITOA (and arguably also the Delegate's Decision from 2014): see [14]-[17] below, the Court cannot therefore consider the substantive material in the Applicant's Affidavit, and the Minister's objection should be upheld, and [3] to [20] of the Applicant's Affidavit, plus annexures, must be struck out. There will be an order accordingly.
Essentially the same view as expressed in BDY15 was expressed in AML18 v Minister for Immigration [2020] FCCA 525 (“AML18 - FCCA”) at [82] per Judge Kendall where the then Federal Circuit Court observed that:
The Court ought not to take into consideration materials which post-date the IAA’s decision: WZATI v Minister for Immigration & Border Protection [2015] FCA 923. It is also apparent that the purpose of providing these materials was to invite the Court to disagree with the IAA’s decisions and findings of fact: Tesic v Minister for Immigration [2017] FCAFC 93 at [55]. Were the Court to do so, it would be engaging in impermissible merits review.
An appeal to the Federal Court by AML18 against AML18 – FCCA was unsuccessful: AML18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 28 at [27]-[29] per McKerracher J.
The matters of fact the subject of [13]-[21] of GOW18’s March 2024 Affidavit – essentially GOW18’s marriage and the birth of GOW18’s daughter – were not before the Authority at the time the Authority made the Authority Decision because they had not yet occurred. The evidence at [13]-[21] of GOW18’s March 2024 Affidavit can only be said to have been presented to invite the Court to make new factual findings contrary to those made by the Authority. Such a course is not permissible upon judicial review: Tesic at [55] per Reeves, Robertson and Rangiah JJ (from which an application for special leave to appeal was refused by the High Court: Tesic v Minister for Immigration and Border Protection [2017] HCASL 271 at [1] per Bell and Nettle JJ); MZXLD at [10] per Gordon J; AML18 - FCCA at [82] per Judge Kendall; BDY15 at [12] per Judge Lucev, and were the Court to do so it would be engaging in impermissible merits review, contrary to longstanding principle: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The High Court has recently reinforced that principle with its observation that the “line between judicial review and merits review … must be maintained”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610; (2024) 418 ALR 512 (“LPDT”) at [15] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, an observation which reflects the dichotomy between merits review and judicial review which lies at the heart of Australian administrative law and that the boundary between the two is vigorously policed: Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11 at [127] per Spigelman CJ; Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 at [367] per McKerracher J: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The evidence at [13]-[21] of GOW18’s March 2024 Affidavit can only be sought to be admitted for the purpose of having the Court determine matters of fact which occurred after the Authority Decision, and which cannot, as such, establish jurisdictional error in the Authority Decision. The evidence is, as ruled at hearing, inadmissible, and [13]-[21] of GOW18’s March 2024 Affidavit will therefore be struck out.
Additional Affidavit material - GOW18’s June 2024 Affidavit
Pursuant to the Court’s June 2024 Orders, on 27 June 2024 GOW18 filed an affidavit (“GOW18’s June 2024 Affidavit”) in which GOW18 asserted that:
(a)the Authority had failed to properly consider the SHE Visa application;
(b)the Sri Lankan Government was endeavouring to introduce new anti-terrorism legislation; and
(c)the Authority Decision was based solely on the content of a Department of Foreign Affairs and Trade (“DFAT”) Country Report, and that there had been a failure to consider other country information.
In GOW18’s June 2024 Affidavit GOW18:
(a)submitted, at [1], “that my asylum application does not appear to have been properly considered” by the Authority, and refers to:
(i)at [3] and [4], an Australian Centre for International Justice article published on 3 June 2021 (“ACIJ Article”), and asserts that the ACIJ Article highlighted shortcomings in a 2019 DFAT Country Report on Sri Lanka as well as earlier DFAT Country Reports on Sri Lanka; and
(ii)various annexed country information articles and reports concerning Sri Lanka, and the position of Tamils therein, published between 2016 and 2018: at [5]-[15] (“2016-2018 Country Information”), noting in particular at [13] that the Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka) (“POT Act”) “has been utilized for the detention of individuals without trial”;
(b)by reference to various annexed country information dating from 2020 to 2024 (“2020-2024 Country Information”) asserts that:
(i)the Sri Lankan Government was endeavouring to introduce new anti-terrorism legislation, and if it is introduced he is concerned that he will be arrested as a Tamil with LTTE links if he returns to Sri Lanka: at [16]-[24];
(ii)Tamils continue to express concern about potential imprisonment and torture in Sri Lanka, and baseless arrests in the north of the Sri Lanka: at [25]-[27]; and
(iii)the Authority Decision was based solely on the content of a 2018 DFAT Country Report, and that there had been a failure to consider other country information including reports issued by the United Nations and other human rights organisations concerning the situation in Sri Lanka: at [28]-[31].
At hearing on 15 July 2024 the Minister objected to the admission of GOW18’s June 2024 Affidavit: Transcript, 15 July 2024, p 2, on the bases that:
(a)it annexed country information, the 2016-2018 Country Information and the 2020-2024 Country Information, that was not before the Delegate or the Authority; and
(b)the 2020-2024 Country Information was merely an invitation for the Court to engage in impermissible merits review.
GOW18, invited to make submissions in response to the Minister’s objection, submitted: Transcript, 15 July 2024, pp 3-4, that:
(a)“ my visa has been stopped and I lost my work and I lost my Medicare” and “ because of that, I couldn’t find a lawyer”, and “I didn’t have money to find a lawyer and appeal” within the time allowed;
(b)the ACIJ Article said that the 2018 DFAT Report was wrong and that the Authority Decision was based on a 2018 DFAT Report which the ACIJ Article had said was wrong, and the Authority Decision did not consider the Sri Lankan papers, news and international reports;
(c)he had been subjected to interrogation for six hours on suspicion of being an LTTE member and suffered bodily harm, and that the interrogation did not finish on that day and following his parents intervention he was released the same day, but was asked to return in four days time for further interrogation; and
(d)there is an error in law because the United Nations has said that the Tamils have a problem, and any report before 2019 is not correct, and the Authority Decision has not taken into account the United Nations report that Tamils have problems in Sri Lanka.
It is well-established that in referring to and considering country information, the identification of relevant country information, and the weight to be attributed to it are matters for the Authority: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] and [13] per Gray, Tamberlin and Lander JJ.
In VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291; (2005) 87 ALD 333 (“VTAG”) at [41] per Heerey, Finkelstein and Lander JJ, the Full Court of the Federal Court held that there was no obligation on the then Refugee Review Tribunal to accept more recent information, even if it had been supplied, noting that it may be from a less reliable source, nor was the Refugee Review Tribunal obliged to inquire into more recent country information than was before it.
In WZATI v Minister for Immigration and Border Protection [2015] FCA 923 (“WZATI”) the Federal Court rejected the tender by WZATI of country information which post-dated the decision of the Refugee Review Tribunal in that matter, observing at [70] per Barker J as follows:
In VI, VII and VIII of the appellant’s outline of submissions, the question of reliance on country information is raised. The appellant would like the Court to look at two recent pieces of information, one from the United Kingdom dated 13 August 2015 and another from an ABC program. Both are acknowledged by the appellant to be of recent origin. It is not open to the Court on this hearing to consider those recent materials. In any event, the Court does not consider it appropriate to do so.
In ACL17 v Minister for Immigration and Border Protection [2018] FCCA 3191 (“ACL17 – FCCA”) at [42] per Judge Driver it was observed that:
I accept from Minister for Immigration v MZYTS, ARG15 v Minister for Immigration and MZYXP v Minister for Immigration, that where the Tribunal has various pieces of country information before it, it may fall into error by not considering the most recent or cogent information. That does not mean, however, that the Tribunal has to go hunting for information it does not have. There is no general duty to inquire and nothing in this case triggered an obligation to inquire.
ACL17’s appeal against the judgment of this Court in ACL17- FCCA was dismissed by the Federal Court: ACL17 v Minister for Home Affairs [2019] FCA 753; (2019) 165 ALD 301 (“ACL17 – FCA”). Special leave to appeal ACL17 – FCA was refused by the High Court: ACL17 v Minister for Home Affairs & Anor [2019] HCASL 318.
At the outset it is necessary to observe that GOW18’s submissions proceed upon a misconception, that is that the Authority Decision was based on a single 2018 DFAT Country Report. It is fair to observe that the Authority Decision refers extensively to a 2018 DFAT Country Report, cited as “DFAT Country Information Report – 23 May 2018” (“DFAT Country Information Report 2018”): CB 205 at [18] at fnn 2, 3 and 4, 206 at [20] at fn 5, 207 at [29] at fnn 6, 7 and 8, CB 207-208 at [30] at fnn 9 and 10, 208 at [32] at fn 11, 209 at [35]-[39] at fnn 14-20 and 210 at [40] at fnn 21-22 and [42] at fnn 23-25.
The submission of sole reliance on the DFAT Country Information Report 2018 by the Authority in making the Authority Decision is, however, misconceived because the Authority considered a variety of other country information including:
(a)a further DFAT Country information Report, this one dating from 2017, and cited as “DFAT Country Information Report – 24 January 2017” (“DFAT Country Information Report 2017”), referred to at CB 205 at [18] at fnn 2, 3 and 4 and 206 at [20] at fn 5;
(b)the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, at CB 208 at [32] at fn 11;
(c)a report of the United States Department of State, “Sri Lanka – Country Report on Human Rights Practices 2015”, 13 April 2016, at CB 208 at [32] at fn 12;
(d)a further report of the United States Department of State, “Country Report on Human Rights Practices 2016 – Sri Lanka”, 3 March 2017, at CB 208 at [32] at fn 12; and
(e)a policy and information note of the United Kingdom Home Office, “Country Policy and Information Note Sri Lanka: Tamil separatism”, 15 June 2017 (“UK Home Office Note 2017”), at CB 208 at [32] at fn 13.
The country information from the UNHCR, the US Department of State and the UK Home Office was all cited or footnoted in a critical paragraph in the Authority Decision: CB 208 at [32], in which the Authority said (footnotes omitted):
There is a substantial body of historic information that does indicate that being known to associate with persons suspected of providing support for the LTTE could be a factor in being imputed with pro LTTE links. Reports of about the mistreatment of those suspected of LTTE links continue to emerge. I accept that the applicant worked with F1, and that F1 was himself suspected of LTTE links. Nevertheless, I note the applicant was never charged with any offences related to the LTTE. He has not offered any indication of what happened to F1 including whether F1 himself was ever charged. I note that, on the applicant’s own evidence, he had been principally of interest to the authorities due to his links to F1, not of his own links to the LTTE. He was not detained, except for a single period of questioning in 2012 and he was held for only one day. While I accept the authorities in Sri Lanka did have some interest in him in 2012, I have found above that the applicant is no longer of interest now. I note that the UK Home Office has reported as recently as June 2017 that, in the Home Office’s opinion, Tamil ethnicity on its own does not in its opinion warrant international protection, and nor does past involvement in the LTTE, unless an individual is perceived to have had a significant role with the organisation, or to be active in post war separatism. I do not accept that the applicant would be considered to have had significant role in the LTTE, or that he would be perceived to be involved in post war separatism. None of the evidence before me indicates that the applicant would be imputed with support for the LTTE merely for having sought asylum in another country.
Insofar as GOW18 relies on his submission of sole reliance on the DFAT Country Information Report 2018 by the Authority in making the Authority Decision that submission is, for the reasons set out above, misconceived and cannot of itself justify the Court admitting into evidence new country information.
In this case the Authority Decision was made on 12 November 2018.
In relation to the 2016-2018 Country Information referred to and annexed to GOW18’s June 2024 Affidavit there is nothing to indicate that the 2016-2018 Country Information could not have been:
(a)put before the Delegate; or
(b)bearing in mind the limitations in ss 473DC and 473DD of the Migration Act, at least sought to have been put before the Authority.
It is well established that it is for an applicant to provide their evidence and arguments in sufficient detail to enable an administrative decision-maker to establish the relevant facts: Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412 at [76] per Heerey, Conti and Jacobson JJ; Aporo v Minister for Immigration & Citizenship [2009] FCAFC 123; (2009) 113 ALD 46 at [45] per Spender, Moore and Foster JJ.
If GOW18 intended to rely, or seek to rely, upon the 2016-2018 Country Information then it was for him to bring that information to the attention of the Delegate or the Authority: Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 (“S214/2003”) at [26] per Allsop, Jacobson and Graham JJ; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 at [16] per Selway J (“SGBB”). In Shrestha v Minister for Immigration & Anor [2013] FCCA 710 (“Shrestha”) at [73] per Judge Nicholls, the then Federal Circuit Court referred to S214/2003 and SGBB when finding that if there was medical evidence in support of a claim made in that case, it ought to have been put before the then Migration Review Tribunal by the applicant in that case. The Court in Shrestha at [73] per Judge Nicholls agreed with a submission made by the Minister “that the absence of such evidence before the Tribunal, despite opportunity given to the applicant, means that the Tribunal’s findings were reasonably open to it on what was (and was not put) before it”. The same applies here: on what was put, or not put, before the Authority by GOW18, the conclusions reached by the Authority were reasonably open to be made. Had GOW18 sought to put the 2016-2018 Country Information before the Authority at any time prior to the Authority Decision it is difficult to see how the 2016-2018 Country Information would have met the test for admission as “new information” before the Authority because it was plainly information that could have been provided to the Authority prior to the making of the Authority Decision: Migration Act, s 473DD(b)(i); AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 (“AUS17”) at [10]-[12] per Kiefel CJ, Gageler, Keane and Gordon JJ. The Authority was not required to “go hunting” for the most recent new country information: ACL17 – FCCA at [42] per Judge Driver, and it was not under any positive duty to make enquiries outside the material referred to it by the Secretary or presented to it by GOW18: Migration Act, ss 473CB and 473DD; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [43] per Gummow and Hayne JJ; SZGRK v Minister for Immigration and Citizenship [2010] FCA 153 at [18] per Rares J; CMI17 v Minister for Home Affairs [2019] FCA 1193 at [95] per Greenwood J. The failure by GOW18 to put before the Delegate or the Authority the 2016-2018 Country Information now sought to be referred to also distinguishes this matter from the finding made in Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 (“MZYTS”) at [73] per Kenny, Griffiths and Mortimer JJ, because in MZYTS the Tribunal ignored more recent country information which was actually put before it.
It follows from the above that the 2016-2018 Country Information was not material or evidence that could have been put before the Authority or which the Authority was obliged to seek out. To seek to have this Court now consider it on judicial review would constitute impermissible merits review by the Court (as to which see [19] above).
GOW18’s position is even weaker with respect to the AICJ Article and the 2020-2024 Country Information. They are country information which post-dates the Authority Decision and which could not therefore have been considered by the Authority in making the Authority Decision. And, in relation to the AICJ Article, there was no information before the Authority at the time the Authority Decision was made to suggest that either the DFAT Country Information Report 2017 or the DFAT Country Information Report 2018 were “wrong” as GOW18 now submits. And, even if the DFAT Country Information Report 2017 or the DFAT Country Information Report 2018 were “wrong”, as GOW18 now submits, reliance upon them would be insufficient to constitute an error of law giving rise to jurisdictional error as any errors arising would be errors of fact not law: AVJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1056 at [42] per O’Bryan J; DBD16 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 137 at [45] per Judge Lucev. GOW18’s submissions also assume that the country information he refers to would be accepted by the Authority as being correct. That assumption may not be correct, as, if the new country information now sought to be admitted was before the Authority, it would be for the Authority to assess all of the country information and decide for itself what country information to rely upon: NAHI at [11] and [13] per Gray, Tamberlin and Lander JJ; VTAG at [41] per Heerey, Finkelstein and Lander JJ.
Having regard to all the above circumstances the Court has concluded that GOW18’s June 2024 Affidavit will not be admitted into evidence in these proceedings.
Submissions on the Extension of Time Application
GOW18’s submissions
GOW18 did not file a written outline of submissions.
In GOW18’s March 2024 Affidavit GOW18:
(a)submits that he filed the Proposed Judicial Review Application promptly after becoming aware of the time limit: GOW18’s March 2024 Affidavit at [11]; and
(b)asserts that he refrained from raising certain details at the Delegate’s Interview due to concerns about the sharing of information “through the interpreter” which “might potentially put my family members at risk of facing further troubles” in Sri Lanka: GOW18’s March 2024 Affidavit at [25].
In GOW18’s June 2024 Affidavit GOW18 at [1] submitted, “that my asylum application does not appear to have been properly considered” by the Authority.
At hearing GOW18 made the following oral submissions:
(a)the submissions set out at [12] and [24] above;
(b)the delay was only one day and GOW18 had to get assistance to complete the Proposed Judicial Review Application, but the person he chose to assist him (“Peter”) did not help him: Transcript, 24 June 2024, p 6;
(c)various reports said that the DFAT country information was “wrong” and “unreliable”: Transcript, 24 June 2024, pp 6-8;
(d)DFAT failed to take into account various country information concerning the situation in Sri Lanka for persons with connections to the LTTE: Transcript, 24 June 2024, p 7, and a United Nations report that “Tamils have problems there”: Transcript, 15 July 2024, p 4; and
(e)his life would be under threat if he returned to Sri Lanka, in particular as the Sri Lankan Government was still using the POT Act against persons connected to the LTTE: Transcript, 24 June 2024, pp 7-8.
Minister’s submissions
The Minister submitted (see the Minister’s Submissions and Transcript, 15 July 2024, pp 4-5) that:
(a)the two day delay was slight;
(b)the explanation for the delay was both insufficient and implausible;
(c)there were inconsistencies in GOW18’s account of the delay, including that he said he knew that the Proposed Judicial Review Application was late, yet he did not seek an extension of time, ticking “no” in response to the question as to whether an extension of time was required;
(d)the Minister would not suffer any prejudice if the Extension of Time Application were granted;
(e)to the extent that the claims at [22]-[25] of GOW18’s March 2024 Affidavit regarding the Delegate’s Interview raise an intended further ground of review, GOW18 was provided sufficient information about the interview process and the interpreter’s involvement in that interview and there was nothing in the materials to suggest that GOW18 did not have enough time to adequately address the questions posed at the Delegate’s Interview or had been hesitant to disclose his genuine concerns due to the interpreter’s in-person presence;
(f)the Proposed Judicial Review Application lacked sufficient merit for the Extension of Time Application to be granted; and
(g)the Extension of Time Application ought to be dismissed.
Consideration
Legislation
Section 477(2) of the Migration Act provides that the Court may, by order, extend time as it considers appropriate if:
(a)an application for that order has been made in writing to the Court specifying why it is necessary in the interests of the administration of justice to make the order; and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice.
The Court has assumed (without the benefit of argument and without formally deciding) that GOW18’s written affidavit material is sufficient to constitute an application for an order in writing. Otherwise, when determining whether to extend time for the filing of a proposed application for judicial review of a migration decision under s 477(2) of the Migration Act, there are no mandatory relevant considerations, and thus the discretionary power to extend time is unfettered, save that consideration must be given to whether it is in “the interests of the administration of justice” for time to be extended: Katoa at [12] per Kiefel CJ, Gageler, Keane and Gleeson JJ, and the power to determine whether an extension of time is necessary in the interests of the administration of justice is “deliberately broad”: Katoa at [39] per Gordon, Edelman and Steward JJ.
Factors for consideration
To assist it in determining whether an extension of time is necessary in the interests of the administration of justice this Court generally has regard to the well-established considerations identified in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley Developments”), FCR at 348-349 per Wilcox J, and referred to approvingly in Katoa at [12]-[13] per Kiefel CJ, Gageler, Keane and Gleeson JJ and [40] per Gordon, Edelman and Steward JJ (see also CEV15 v Minister for Immigration and Border Protection [2017] FCA 976 at [9] per Perry J cited in the Minister’s Submissions), as relevant considerations in assisting to determine extension of time applications under s 477(2) of the Migration Act. Those well-established, but not exclusive, considerations are:
(a)the length of the applicant’s delay;
(b)the reasons for the applicant’s delay;
(c)any prejudice to the respondent or third parties; and
(d)the merits of the underlying application.
Length of delay
In this case the delay is slight, the Proposed Judicial Review Application being only two days out of time. Notwithstanding the time limit in s 477(1) of the Migration Act is the general rule and that the authority given to the Court by s 477(2) of the Migration Act to extend time is the exception: Katoa at [34] per Gordon, Edelman and Steward JJ; Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”), CLR at 553 per McHugh J, the delay here is so slight that it is not a factor which, of itself, weighs significantly against the grant of the Extension of Time Application.
Explanation for the delay
In GOW18’s March 2024 GOW18 claims that:
(a)he found a person called “Peter” to assist him with filing a judicial review application. GOW18 says he met Peter at a shopping centre and provided Peter with copies of GOW18’s identity documents and told Peter of the applicable filing deadline for a judicial review application;
(b)Peter requested a payment of $1,000 in cash which GOW18 says he paid, and that Peter assured GOW18 that a judicial review application would be filed before the filing deadline; and
(c)he received a call from someone at the Minister’s Department on the day of the filing deadline who told him that no judicial review application had been filed. GOW18 explained to the caller, with the assistance of an interpreter, that he was under the impression that Peter had submitted a judicial review application. GOW18 requested the assistance of a Tamil Justice of the Peace to submit a judicial review application but by this time the filing deadline had passed. GOW18 claimed that the delay was due to his ignorance and his limited proficiency in English.
The Minister submits that GOW18’s explanation is implausible.
At hearing the Minister did not seek to cross-examine GOW18 on GOW18’s March 2024 Affidavit in which the explanation of the delay appeared: Transcript, 24 June 2024, p 6. It follows that the only evidence before the Court as to the explanation for the delay is the unchallenged evidence of GOW18.
GOW18’s evidence as to the explanation for the delay, whilst unusual, is not so implausible as to not be capable of belief. The possible disadvantages in being a non-English speaking foreign national seeking to participate in the Australian legal process are well recognised: see, for example, BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [31]-[35] per Feutrill J; MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J, and are such that they may cause a potential applicant to seek assistance from a person such as Peter. Here, a limited proficiency in English and a lack of particular knowledge of the relevant legal system and its processes was plainly disadvantageous to GOW18 in the context of his seeking to engage with the Australian legal process through the mechanism of a judicial review application in proceedings under the Migration Act in a federal court where the action is premised upon there being a jurisdictional error by an administrative decision-maker, and even more so in circumstances where, on the evidence, GOW18 had paid for, and thought he had obtained, assistance to file a judicial review application, but ultimately was, seemingly, duped.
The Minister pointed to the fact that GOW18 knew that there was a time limitation, but that does not affect his explanation for the delay, as, on the unchallenged evidence GOW18 did take steps in an endeavour to have a judicial review application filed within time. The fact that GOW18 was seemingly told by someone from the Department on the day that the time limitation for filing a judicial review application expired that no judicial review application had been filed is not, having regard to the matters referred to in the previous paragraph, to be weighed against him, and the more so in circumstances where he had effectively relied on whatever assistance that he had previously believed he had obtained: MZZIV at [5] per Mortimer J; ADN15 at [29] per Charlesworth J.
Once GOW18 became aware that no judicial review application had been filed on his behalf by Peter the evidence indicates that GOW18 promptly took further steps to obtain further assistance, resulting in the filing of the Extension of Time Application, and the Proposed Judicial Review Application which was by then two days out of time.
In the above circumstances the Court is satisfied that there is, on the evidence, a plausible and adequate explanation for the delay in filing the Proposed Judicial Review Application.
Prejudice
The Minister accepts that he will not suffer any prejudice by grant of the Extension of Time Application, although the absence of prejudice in itself is insufficient to warrant the grant of an extension of time: Hunter Valley Developments, FCR at 349 per Wilcox J; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.
Sufficient merit
For present purposes it suffices to observe that the Court may set aside the Authority Decision at any final hearing if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; LPDT at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ. Therefore, in order for the Extension of Time Application to be granted GOW18 must establish, at least, a sufficiently or reasonably arguable merit case of material jurisdictional error in the Authority Decision.
The level of the Court’s consideration of the merits of the Proposed Judicial Review Application is a matter for the Court having regard to all of the circumstances, and it is not an error to consider the substance of any grounds beyond an “impressionistic evaluation”: Katoa at [19] per Kiefel CJ, Gageler, Keane and Gleeson JJ. And if GOW18 fails to satisfy the Court that any ground (or possible ground) of judicial review has merit it is open to the Court to fail to be satisfied that it is necessary in the interests of the administration of justice to grant the Extension of Time Application: Katoa at [20] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
The Proposed Judicial Review Application filed on 19 December 2018 contains no grounds upon which judicial review is sought. GOW18 had multiple subsequent opportunities from 2019 to 2024 to file an amended Proposed Judicial Review Application but did not do so: see [6] above. There are therefore before the Court no actual grounds upon which judicial review might be sought if the Extension of Time Application is granted. Without more that would be a proper basis to find that the Proposed Judicial Review Application lacked any, or sufficient, merit and therefore it would not be in the interests of the administration of justice to extend time to file a proposed judicial review application which has little or no prospect of success: Katoa at [20] per Kiefel CJ, Gageler, Keane and Gleeson JJ; MZZIV at [6] per Mortimer J; CNM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1358 (“CNM16”) at [20] per Rares J.
A reading of GOW18’s March 2024 Affidavit at [22]-[25] does, however, reveal a claim regarding the Delegate’s Interview, namely that GOW18:
(a)did not have enough time to adequately address the questions posed by the Delegate; and
(b)was hesitant to disclose his genuine concerns due to the interpreter’s in-person presence at the Delegate’s Interview.
GOW18 attended the Delegate’s Interview on 19 June 2018: CB 134. GOW18 was assisted by a Tamil interpreter, and the Delegate observed that GOW18 was able to converse easily in this language: CB 170.
It was open for GOW18 to raise his concerns about the Delegate’s Interview:
(a)at the Delegate’s Interview;
(b)before the Delegate’s Decision was made on 22 June 2018; and
(c)in submissions he was permitted to make to the Authority: CB 194-196 (albeit within the constraints imposed by ss 473DC and 473DD of the Migration Act),
but he did not do so.
In any event it is evident from the Delegate’s Decision that at the Delegate’s Interview:
(a)GOW18 gave evidence, at least, about:
(i)his protection claims, which were recorded by the Delegate: CB 169;
(ii)specific claims, in the context of the Delegate’s assessment of GOW18’s credibility: CB 170;
(iii)his place of birth and residence, and that “[d]ue to the level of information provided” by GOW18 the Delegate accepted his claims as to his place of birth and residence: CB 170;
(iv)his not being a member of the LTTE, but his being imputed to have LTTE connections because of his association with a work colleague: CB 170;
(v)his detention by the SLN on account of his association with his work colleague: CB 170; and
(vi)that the SLN confiscated his GPS and Fishing Pass whilst he was being investigated: CB 170; and
(b)in giving evidence GOW18 “appeared to converse easily” with the interpreter: CB 170.
GOW18 has not provided an audio record or a transcript of the Delegate’s Interview to support his allegation that he was not given sufficient time to adequately address the Delegate’s questions, and his other claim that he did not wish to disclose his protection claims fully is inconsistent with the claim that he was not given enough time to answer questions at the Delegate’s Interview.
In ADH17 v Minister for Immigration and Border Protection [2020] FCA 53 at [45] per O’Bryan J the Federal Court noted that an administrative decision-maker is not required to consider a case that is not expressly made or does not arise clearly on the materials before it, citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [61] per Black CJ, French and Selway JJ. To put it a little differently, the Authority’s function was to respond to the case that GOW18 advanced: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) at [78] per Kirby J; SGBB at [17] per Selway J. Because no claim was made, the Authority was neither required nor able to consider such a claim. Moreover, having regard to the facts set out at [62]-[65] above, the claim concerning the Delegate Interview is not a claim with any obvious merit.
In the circumstances the Court is satisfied that it is apparent from the Delegate’s Decision that GOW18 adequately answered questions that he was asked at the Delegate’s Interview, and the Court is not satisfied that GOW18 did not have enough time to adequately address the questions posed by the Delegate. In terms of possible jurisdictional error ultimately affecting the Authority Decision there is insufficient evidence to suggest that GOW18 can raise a sufficiently meritorious case that he was denied procedural fairness by the Delegate.
GOW18 now also suggests that he had reasons for not advancing all of his claims at the Delegate’s Interview based on what is now said to be a “concern” that “sharing information through the interpreter might potentially put my family members at risk of facing further troubles in my home country”: GOW18’s March 2024 Affidavit at [25].
The Court notes that on 5 June 2018 GOW18 was sent a letter by the Minister’s Department inviting him to attend the Delegate’s Interview: CB 134-135 (“Delegate’s Interview Invitation Letter”) and was advised therein that “[a] Tamil speaking interpreter will be present at the interview”: CB 134 (underlining added).
With the Delegate’s Interview Invitation Letter was a document titled “Important Information About Your Protection Visa Interview”: CB 136-142 (“Information Document”). The Information Document explains that “the following people will be at the interview with you”, and then lists three persons, one of whom is “an interpreter”: CB 136. In relation to the interpreter the Information Document goes on at CB 136 to explain that:
If you do not speak English, or have trouble understanding spoken English, an interpreter in the language you have requested on your application form will be arranged for you. The interpreter is not permitted to tell anyone anything they hear during the interview. The interpreter will assist with language interpretation only and has nothing to do with deciding your application for a Protection visa.
The Information Document was also provided to GOW18 in a Tamil translation at CB 144-154.
There is nothing in the Delegate’s Interview Invitation Letter or the Information Document to indicate that the interpreter might appear remotely, as is now suggested by GOW18, and therefore there was no basis for him to be taken by surprise at the in-person appearance of an interpreter at the Delegate’s Interview. There is also no factual basis on which GOW18 can sustain his concerns about the interpreter sharing information (presumably with the Sri Lankan authorities or persons connected with those authorities). And, as with the claim about inadequate time to answer questions at the Delegate’s Interview, the interpreter claim is not a claim which was raised with the Delegate or the Authority. In the above circumstances, not only was the interpreter claim lacking a factual foundation, but the Authority was also not required to consider it: Dranichnikov at [78] per Kirby J; SGBB at [17] per Selway J, and therefore it does not give rise to a sufficiently arguable case of jurisdictional error in the Authority Decision.
At hearing GOW18 suggested that the Authority may have failed to properly consider his case, in particular because the Authority Decision was based solely on the content of a single DFAT Country Report, and that there had been a failure to consider other country information. For the reasons set out at [31]-[33] above that claim is misconceived, and it does not therefore give rise to a, or a sufficiently arguable case of, jurisdictional error in the Authority Decision. More generally it is clear that in the Authority Decision the Authority set out GOW18’s claims: CB 202-203 at [4], that it understood and considered those claims, making factual findings in relation to them: CB 203-206 at [5]-[23], and assessed the claims in light of its factual findings having regard to the relevant legislative criteria under the Migration Act: CB 206-212 at [24]-[50]. Generally speaking, and in the absence of grounds, particulars or any specificity as to any alleged jurisdictional error, the findings in the Authority Decision appear to have been open to be made by the Authority: Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [131]-[135] per Crennan and Bell JJ, and are not indicative of any jurisdictional error in the Authority Decision.
It follows from [60]-[73] above that there is no sufficiently arguable case of jurisdictional error in the Authority Decision.
CONCLUSION AND ORDER
The Court has concluded that the Proposed Judicial Review Application lacks any, or sufficient, merit in that it does not raise an arguable case of jurisdictional error in the Authority Decision. It would not therefore be in the interests of the administration of justice to grant the Extension of Time Application to file the Proposed Judicial Review Application which has little or no prospect of success: Katoa at [20] per Kiefel CJ, Gageler, Keane and Gleeson JJ; MZZIV at [6] per Mortimer J; CNM16 at [20] per Rares J.
There will therefore be an order dismissing the Extension of Time Application.
Because an extension of time is not being granted it is unnecessary to make a further order that the Proposed Judicial Review Application be dismissed as incompetent: BZABK v Minister for Immigration and Citizenship [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; CUS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 293; (2022) 369 FLR 305 at [82] per Judge Lucev.
The Court will hear the parties as to costs.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 16 January 2025
0
69
2