GPM18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1423
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GPM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1423
File number(s): SYG 3563 of 2018 Judgment of: JUDGE ZIPSER Date of judgment: 19 December 2024 Catchwords: MIGRATION – judicial review – extension of time application - extension of time refused – costs ordered. Legislation: Administrative Appeals Tribunal Act1975 (Cth)
Migration Act 1958 (Cth)
Cases cited: BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870
CZQL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1610
Minister for Immigration and Multicultural Affairs v Li [2013] HCA 18; 249 CLR 332
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; 135 ALD 17
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 13 December 2024 Place: Parramatta Applicant: In person Solicitor for the Respondents: Mr Jason Law from Australian Government Solicitor ORDERS
SYG 3563 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GPM18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MUTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application for an extension of time is dismissed.
3.The applicant pay the first respondent’s costs fixed in the sum of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 18 December 2018, the applicant filed an application to extend time, pursuant to s 477 of the Migration Act 1958 (Cth) (Act), in which to make an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 1 November 2017.
For the reasons that follow, the application for an extension of time is dismissed.
FACTUAL BACKGROUND
On 14 April 2015, the applicant applied for a protection visa.
On 4 November 2015, a delegate of the first respondent, following an interview with the applicant on 7 October 2015, made a decision refusing to grant the visa.
On 25 November 2015, the applicant applied to the Tribunal for review of the delegate’s decision.
On 21 August 2017, the Tribunal invited the applicant to attend a hearing on 18 September 2017.
On 18 September 2017, the applicant attended the Tribunal hearing to give evidence and present arguments.
On 1 November 2017, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a protection visa.
PROCEEDINGS IN THIS COURT
Application and steps up to 12 December 2024
On 18 December 2018, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 1 November 2017 (Application). The Application included two grounds as follows (as written):
Ground 1
1. The Tribunal did not act in accordance with its Statutory obligations under S. 353 (2) of the Migration Act which requires the AAT to "act according to substantial justice and the merits of the case" and so committed jurisdictional error.
Particulars
1.The AAT made the following findings:
i.The AAT did not accept that the applicant left his country and cannot return there because he feared/fears harm there from those with whom he fought and harmed in an incident at his workplace in June/July/August 2014. [44]
ii.The Tribunal did not accept as true the applicant's evidence that the people/ person whom he harmed was searching for him to harm him after the incident in 2014 and/or that he/they continue to do so.
2.Substantial justice and merits of the case would have required the review to have been successful for the following reasons:
i.The applicant's explanations were possibly correct;
ii.Tribunal accepted numerous other claims by the applicant at [47], [48],
iii.The acceptance of these other claims are relevant to the applicant's credit
Further Particulars
2.The ATT at [44] considered the applicant invented a claim that he stabbed a person to give himself a better chance of getting a visa, the applicant not having made the claim until his application for review, and the applicant having delayed leaving Fiji until 29 March 2015 he having a visa since 11 November, 2014.
However, the applicant gave an explanation to delay including that he was saving money and borrowed money [44]; and the explanation as to not making the claim earlier was because the applicant feared being sent back to Fiji if he revealed in his initial application what he had done [44].
3.The ATT at [45] considered the claim that people whom he harmed were searching for him was invented, because the claim was inconsistent with the applicant's evidence he remained at work at the sugar factory after the incident in 2014, and had lived and worked at the family's farm in Ba until he came to Australia.
However, the applicant gave an explanation as to how the people did not find him at [45], saying variously that he ran away, sometimes he did not go home, he was in hiding, and was escaping these people.
4.Had the AAT followed its statutory obligations, it would have accepted these explanations and upheld the review.
Ground 2
2.The Tribunal did not act in accordance with its Statutory obligations under S 2A of the Administrative Appeals Tribunal Act (1975) which states "Tribunal's Objective. In carrying out its functions the Tribunal must pursue the objective of providing a mechanism of review that:
a. Is accessible; and
b. Is fair, just, economical, informal, and quick; and
c. Is proportionate to the importance and complexity of the matter; and
d.Promotes public trust and confidence in the decision making of the Tribunal."
and so committed jurisdictional error.
Particulars
[Applicant substantially reproduced particulars of ground 1]
As explained below, in light of the time limit for filing applications in s 477 of the Act, the applicant filed the Application about 377 days after the expiry of the time limit and required an extension of time. The Application included an application for extension of time with the following grounds:
1. I did not have a legal representative before the AAT review to assist and advise me in respect of the AAT review.
2. I was not aware that my visa would cease unless an application for judicial review was filed within the deadline following the AAT's decision. Accordingly, I took no steps to seek judicial review.
3. In November 2018 I was looking for a job and was required to provide a copy of my current migration status. Therefore, I did a VEVO check expecting that my visa was still valid but became aware that my bridging visa had ceased. Then I have started to look for a lawyer and to seek legal advice in this respect.
4. I was referred to this lawyer by my friend on 13 December 2018 then I went with my AAT’s decision to see the lawyer and have sought his advice.
5. I could not seek legal advice until 13 December 2018 and I was not in that position to seek legal advice. It is necessary in the interests of the administration of justice to extend time to me on the basis that I have an arguable case before the Court.
The applicant filed an affidavit on 18 December 2018 which repeated these matters and thereby provided sworn evidence in support of the grounds.
On 14 November 2023, a registrar made orders, at a callover attended by the applicant, that, upon the matter being listed for hearing, the applicant file and serve written submissions and any amended application at least 28 days before the hearing.
On 16 October 2024, the parties were informed the matter was listed for hearing on 13 December 2024.
By 13 December 2024, other than the Application and accompanying affidavit filed on 18 December 2018, the applicant had filed no other documents in the proceeding, including any written submission.
Hearing on 13 December 2024
At the hearing on 13 December 2024, the applicant appeared before the Court unrepresented, assisted by an interpreter in the Hindi language. Jason Law from Australian Government Solicitor appeared for the first respondent.
Although the applicant confirmed at the callover on 14 November 2023 that he had received a copy of the Court Book, he did not bring his copy of the Court Book, nor any other documents associated with the court proceeding, to the hearing. At the commencement of the hearing, the applicant was provided with a copy of the Application, his affidavit filed on 18 December 2018, and the decision of the Tribunal dated 1 November 2017.
At the commencement of the hearing, I explained to the applicant the limited role of the Court in a judicial review application, and the need for the applicant to persuade the Court that there is a jurisdictional error, which I described as a significant mistake or error, in the Tribunal’s decision. I directed the applicant’s attention to the reasons for decision of the Tribunal, explained the structure of the decision and explained the main categories of jurisdictional error. After I explained these matters to the applicant, I adjourned the matter for 15 minutes to give the applicant time to consider oral submissions he wanted to make to the Court.
After the adjournment, in circumstances where the applicant needed to provide to the Court an explanation of his delay of about 377 days in lodging the Application, I read the applicant’s affidavit filed on 18 December 2018. Mr Law did not want to cross-examine the applicant.
I then invited the applicant to make oral submissions. The applicant stated that he did not wish to make a submission. The applicant made no effort to persuade the Court that there was a jurisdictional error in the Tribunal’s decision, or that the Court should extend time under s 477(2) of the Act. While the applicant’s conduct at the hearing is not relevant to whether or not he should be granted the relief sought in the Application, he appeared to show no real interest in persuading the Court that there was an error in the Tribunal’s decision.
Mr Law made brief oral submissions on behalf of the first respondent and otherwise relied on a written submission filed on 27 November 2024.
I invited the applicant to make an oral submission in reply. The applicant did not wish to make a submission.
EXTENSION OF TIME PROVISIONS
Section 477 of the Act relevantly provides:
(1)An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 (Katoa) at [12], the plurality stated in respect of the equivalent provision in s 477A(2) that “the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties, and the merits of the underlying application” and “the level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice”.
In relation to the merits of the underlying application, one matter considered in Katoa was the degree or extent to which the Court may or should consider the merits of the underlying application. The plurality stated at [17]-[19] that “in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”, but “there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits”, and ultimately the provision “entrusts to the [Court] the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application”.
CONSIDERATION
Length of delay and reasons for delay
The 35 day timeframe for the applicant to apply to the Court for judicial review of the Tribunal’s decision ended on 6 December 2017. The applicant did not apply for judicial review until 18 December 2018. He therefore requires an extension of time of about 377 days. The first respondent describes the delay in its written submission as “very significant”. I agree.
The applicant’s explanation for the delay is that he “was not aware that [his bridging] visa would cease unless an application for judicial review was filed within the deadline following the AAT’s decision” and he did not become aware, until he was looking for a job in November 2018, that his bridging visa had ceased. Upon becoming aware that his bridging visa had ceased, he obtained legal advice.
Although the Application does not record on its face that it was prepared by a lawyer, the manner in which the grounds of jurisdictional error are drafted suggest the grounds were prepared by a lawyer. This presumably was the lawyer referred to by the applicant in his affidavit.
The Federal Court has stated that “ignorance of [the stipulated timeframe within which to commence court proceedings] (without more) is generally not regarded as a satisfactory explanation for delay”: see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; 135 ALD 17 at [38]; BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870; CZQL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1610 (CZQL) at [56]. In the present matter, to the extent that the applicant relies on ignorance of the stipulated time frame, his explanation is not satisfactory. For example, he has not explained why, upon receiving the Tribunal’s decision which was posted to him on 2 November 2017, he did not promptly obtain legal advice or take any other steps until November 2018 to investigate the date his bridging visa expired or, if he disagreed with the Tribunal’s decision, whether he could appeal against the decision.
The Federal Court has also stated that “a longer delay will … require further and compelling explanation as to the explanation for the delay and steps taken [and] in general, the longer the delay, the more persuasive the explanation needs to be”: CZQL at [53]; Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]. In the present matter, the applicant’s delay is very significant, but his explanation is unpersuasive and unsatisfactory.
In addition, the first respondent says in its written submission that “it is evident from … the extension of time application that the primary reason for seeking judicial review was to enable the applicant to retain a valid visa”. There is some force in this observation. For example, the applicant appears to say in his affidavit that he filed a judicial review application in this Court to obtain a bridging visa, rather than to challenge an administrative decision which he considered contained a legal error or was wrong.
The applicant’s explanation for his significant delay is unsatisfactory.
Prejudice to first respondent
It is stated in the first respondent’s written submission that the first respondent would not be prejudiced should the Court extend time.
Merits of underlying application
Ground 1 of the Application states that the Tribunal failed to comply with its statutory obligation under s 353(2) of the Act to “act according to substantial justice and the merits of the case”. Since the Tribunal made its decision under Part 7 of the Act, rather than under Part 5 of the Act, presumably the drafter of ground 1 intended to refer to s 420(b) which stated in 2017:
The Tribunal, in reviewing a Part 7-reviewable decision:
(a) …
(b) must act according to substantial justice and the merits of the case.
In Minister for Immigration and Multicultural Affairs v Li [2013] HCA 18; 249 CLR 332 at [16] French CJ stated in respect of an equivalent provision in s 353(2) at the time that s 353(2) “does not import substantive common law requirements of procedural fairness”.
Ground 1 contains two paragraphs numbered “1” and “2” under the sub-heading “Particulars”. The applicant’s contention in these paragraphs appears to be that the Tribunal was required to find that the applicant satisfied the criteria for a protection visa because the Tribunal at [47] “accepted numerous other claims by the applicant”, “the acceptance of these other claims are relevant to the applicant’s credit” and some unspecified “explanations [by the applicant] were possibly correct”. The meaning of these contentions is not entirely clear. The Tribunal at [47] “accept[ed] that the applicant suffered some harassment, abuse, unfairness and discrimination in Fiji as he describes” and he “will face similar difficulties if he returns to his country”. However, the Tribunal continued that “these difficulties, considered both separately and cumulatively, do not amount to serious harm for the purposes of the refugee criterion nor do they amount to significant harm for the purposes of the complementary protection criterion”. I cannot identify any error in the Tribunal’s reasoning process and conclusion at [47] to the effect that the difficulties the Tribunal accepted the applicant will face on return to Fiji are not serious harm or significant harm.
Ground 1 also contains three paragraphs numbered “1”, “2” and “3” under the sub-heading “Further particulars”. The applicant’s contention to the Court in these paragraphs appears to be as follows:
(a)The applicant claimed for the first time in his application to the Tribunal in November 2015 that in June, July or August 2014 he stabbed a worker at the factory at which he worked and he feared harm as a result if required to return to Fiji (Stabbing Claim). The applicant did not make the Stabbing Claim in his protection visa application lodged in April 2015 or during his interview with the first respondent’s delegate in October 2015. The Tribunal recorded at [35] that it asked the applicant during the hearing in September 2017 “why he had not mentioned [the Stabbing Claim] earlier” and the applicant “told the tribunal that he did not mention the stabbing incident earlier because he was too scared; he thought that he would be immediately returned to Fiji if he had mentioned it earlier”. The Tribunal at [44], in the course of finding that the applicant invented the Stabbing Claim, stated that it “does not accept that this explanation for the delay is reasonable or plausible”. The applicant appears to contend to the Court that the Tribunal erred in not accepting the applicant’s explanation.
(b)When the applicant made the Stabbing Claim, he added that the employee he harmed was searching for him to harm him, but could not find him. Yet the applicant also claimed that he remained working at the factory until November 2014. The Tribunal raised with the applicant at the hearing in September 2017 the apparent inconsistency between his claims that he remained working at the factory until November 2014, but the person he harmed at the factory could not find him. The Tribunal at [45] recorded that the applicant, in reply, “said variously that he ran away from the company and went home, and sometimes did not go home, that he was hiding to avoid harm from these people and that he was escaping from these people while he was in Fiji”. The Tribunal then found at [45] that “the applicant invented these explanations to answer the Tribunal’s concerns about his evidence”. The applicant appears to contend to the Court that the Tribunal erred in not accepting the applicant’s explanation.
In summary, the applicant’s contention to the Court in the three paragraphs numbered “1”, “2” and “3” is to the effect that the Court, by not accepting the applicant’s evidence or explanations, has fallen into jurisdictional error. However, it was open to the Tribunal to either accept, or not accept, the applicant’s evidence. That the Tribunal did not accept the applicant’s evidence or explanations does not involve an error, let alone a jurisdictional error.
Ground 1 of the Application does not appear to identify a jurisdictional error in the Tribunal’s decision.
Ground 2 of the Application states that the Tribunal “did not act in accordance with its statutory obligations under s 2A of the Administrative Appeals Tribunal Act 1975 … and so committed jurisdictional error”. The particulars to ground 2 are substantially the same as the particulars to ground 1.
One difficulty with ground 2 is as follows. Part IV of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act) is titled “Reviews by the Tribunal of decisions”. Section 24Z, in part IV, states that “this Part does not apply in relation to a proceeding in the Migration and Refugee Division”. The proceeding the subject of the Tribunal’s decision dated 1 November 2017 was in the Migration and Refugee Division. In circumstances where the Tribunal’s procedure in the present matter is governed by Part 7 of the Act, and not by Part IV of the AAT Act, it is not evident that s 2A of the AAT Act affects the procedure of the Tribunal.
In any event, the particulars to ground 2 are substantially the same as the particulars to ground 1. Just as the particulars to ground 1 do not appear to identify a jurisdictional error in the Tribunal’s decision, the particulars to ground 2 also do not appear to identify a jurisdictional error in the Tribunal’s decision.
Conclusion on extension of time application
The Court may only grant an extension of time if it “is satisfied that it is necessary in the interests of administration of justice to make the order”.
Taking into account the matters above, particularly the significant delay, the absence of a satisfactory explanation for the delay and the lack of any reasonably arguable case of jurisdictional error on the part of the Tribunal, I am not satisfied that it is necessary in the interests of the administration of justice to order that time be extended in this matter.
Therefore, I dismiss the application for an extension of time.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. The first respondent sought costs in the sum of $4,189.38. The applicant did not oppose this amount. I will make an order for costs in this amount.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 19 December 2024
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