Guggal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1852
•12 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Guggal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1852
File number(s): MLG 2193 of 2019 Judgment of: JUDGE MERCURI Date of judgment: 12 August 2021 Catchwords: MIGRATION – application filed 12 days out of time – application for extension of time pursuant to section 477 of Migration Act 1958 (Cth) – applicant seeking further time to apply for judicial review of a decision of the Administrative Appeals Tribunal – Temporary Work (Skilled) Visa (subclass 457) – whether the application for judicial review be extended – whether the applicant’s grounds of review have any merit – impressionistic assessment of the applicant’s grounds of review – application for judicial review be extended Legislation: Migration Act 1958 (Cth), ss 116, 359A, 359AA, 477 Cases cited: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
Number of paragraphs: 37 Date of last submission/s: 15 June 2021 Date of hearing: 15 June 2021 Place: Melbourne Solicitor for the Applicant: The applicant appearing on his own behalf Solicitor for the Respondents: Ms Spice ORDERS
MLG 2193 of 2019 BETWEEN: KAMALJEET GUGGAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MERCURI
DATE OF ORDER:
12 AUGUST 2021
THE COURT ORDERS THAT:
1.The time for filing of the applicant’s application for judicial review be extended to 9 July 2019.
2.The matter be listed before a Registrar on a date to be fixed for future programming.
REASONS FOR JUDGMENT
JUDGE MERCURI
INTRODUCTION
This is an application for an extension of time pursuant to section 477 of the Migration Act 1958 (Cth) (‘the Act’) by which the applicant seeks further time to apply for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’).
BACKGROUND
On 23 May 2019, the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) to cancel the applicant’s Temporary Work (Skilled) Visa (subclass 457) pursuant to section 116 of the Act. Section 477 requires that an application for judicial review be filed within 35 days of the decision the subject of the review application. In this case, that review application should have been filed by the applicant by 27 June 2019. The applicant did not file his application until 9 July 2019, some 12 days outside time.
Pursuant to section 477(2) of the Act, the court has the power to extend the 35 date time limits where it is satisfied that it is necessary in the interests of the administration of justice to do so. There are no prescribed factors which must be considered in determining whether or not to exercise the court’s discretion. However, some relevant factors include:
(a)the length of delay;
(b)the explanation for such delay;
(c)any prejudice to the Minister of granting extension; and
(d)whether there is any merit to the grounds raised by the applicant.
In this case, as stated, the delay is one of some 12 days. Counsel for the Minister conceded that there was no prejudice to the Minister by any order extending the time for lodging a judicial review application.
In his application for an extension of time filed on 9 July 2019, the applicant explained the delay as follows:
As I have been located at MITA Detention centre and the JP is unavailable from last 3 weeks which had made my application delayed to be submitted. (sic)
The applicant appeared on his own behalf before me, assisted by an interpreter.
CONSIDERATION
Application for adjournment
The applicant has not filed any amended application or submissions as ordered. At the hearing, he indicated that he had wanted to appoint a lawyer but had not been able to do so whilst in detention. He said that he tried to contact many lawyers, but had not found a suitable one to assist him.
The applicant sought an adjournment to allow him to engage a solicitor to assist.
The Minister opposed the application for an adjournment. It was submitted for the Minister that the application was filed almost two years ago and the applicant has had sufficient time to seek legal assistance and prepare for the extension of time hearing.
Orders were made on 18 September 2019 by Registrar Hird permitting the applicant to file an amended application and written submissions, however the applicant did not file any material. Whilst I accept the applicant faced limitations of being in detention, there was no evidence led about the steps the applicant had taken to secure legal assistance. For these reasons, I refused the adjournment request.
Extension of time application
Length and explanation for delay
In relation to the extension of time application, the applicant submitted that as he was in detention at the time the Tribunal handed down its decision, this limited his capacity to file the judicial review application within the 35 day time limit. He further submitted that he needed to organise for a Justice of the Peace to attend the detention centre so he could affirm his affidavit in support of his application.
In written submissions filed 4 May 2021, the Minister submitted at [24] that the applicant had not provided adequate explanation for the delay in filing his application for judicial review.
In circumstances where the applicant was in detention and where the application is only some 12 days out of time, I am satisfied that the delay is not inordinate and moreover, the applicant has provided a reasonable explanation for the delay. This is a factor which then weighs in favour of granting the applicant’s application for an extension of time.
Prejudice to the Minister
The Minister did not assert any prejudice arising from the granting of an extension of time. I now turn to the question of the merits of any of the grounds raised by the applicant.
Merit to the grounds of review
In his application, the applicant raises 11 grounds of review. The Minister submits that it is clear from fair reading of the Tribunal’s decision record (CB 156 to 163) that the applicant has no reasonable prospects of success on any of those grounds.
Before turning to the Minister’s submissions in detail on these remaining grounds, it is important to consider the nature of enquiry before the court in an extension of time application.
It is well settled that even where there is a relatively short delay between the expiry of the timeframe for filing an application and the filing of an application for an extension of time, or where there is a reasonable explanation for the delay, the administration of justice would not be served by allowing a claim to proceed which has no realistic prospects of success if the extension were granted. As noted by her Honour Justice Mortimer in MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6]:
Even in circumstances where the court is persuaded on the basis of the kinds of factors referred to that an extension of time may be appropriate, the prospects of success of any appeal may be determinative of the manner in which the Court’s discretion should be exercised. That is because it is not in the interests of the administration of justice to utilise the resources of the Court and of other parties where there is no realistic prospect the appeal will succeed if an extension is granted. Such a process also exposes an applicant to the risk of significantly greater legal costs if the appeal is unsuccessful and the Court makes the usual orders as to costs.
It is also well settled that, in assessing the applicant’s prospects of success at this early stage, the court is required to adopt no more than an ‘impressionistic’ assessment of the grounds of review advanced by the applicant. The question before the court is whether the grounds are ‘arguable’, ‘reasonably arguable’, ‘sufficiently arguable’ or has ‘reasonable prospects of success’ (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63] (‘MZABP’)). However as her Honour Justice Mortimer went on to say:
Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
At paragraph [62] of MZABP, Mortimer J noted;
… It will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospect of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence the judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level… into a full consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
It is clear from these comments that what is required to do in this instance is to determine, by applying a feeling impressionistic assessment, whether the grounds of review advanced by the applicant have reasonable prospects of success. The court is not required to effectively undertake an assessment of those grounds of final basis to determine whether the applicant’s application would ultimately succeed.
The Minister in effect submits that there is a lack of merit in the substantive application and that this is a significant factor which ought to weigh against the granting of an extension of time within which to proceed with the applicant’s application for review.
GROUNDS OF REVIEW
Grounds 1 and 11
In relation to ground 1 and 11 ground 1 it is submitted that neither of these grounds identifies any error of law. I agree that neither ground 1 nor ground 11 give rise to any reasonable arguments which could succeed, if the extension of time were granted.
Ground 2
As to ground 2, it asserts that the Tribunal’s decision was unreasonable. It is submitted for the Minister at [29] of its written submissions that an unreasonable exercise of a statutory power is one which lacks an evident and intelligible justification. The Minister further submits that there is a cogent and intelligible basis for the view that the cancellation power was enlivened and moreover, the exercise of the discretion was reasonably open to the Tribunal for the reasons given.
Grounds 3 and 4
As to ground 3 and 4 by which the applicant asserts that the Tribunal took into account irrelevant considerations and failed to take into account relevant considerations, it is submitted for the Minister that such an argument does not have reasonable prospects of success when the Tribunal’s reasons are fairly read. In particular at [30], the Minister submits that the Tribunal did take into account the applicant’s evidence and gave the applicant an opportunity to respond to adverse information in accordance with section 359A and section 359AA of the Act.
The Minister points to [19] of the Tribunal’s reasons in which the Tribunal clearly asked the applicant if he wanted additional time to respond and the applicant said he wanted to proceed. Moreover at [23] of the Tribunal’s reasons, the Tribunal considered the applicant’s claim that he had returned to work for a short period in December 2018. The Tribunal’s conclusions are then set out at [30] and the Minister submits that these conclusions were reasonably open on the evidence.
In reaching its conclusions, the Minister, as a model litigant, concedes that the Tribunal did not refer to the letter provided by a friend of the applicant, Mr Singh. It is submitted for the Minister, however, that the Tribunal was not strictly required to refer to every piece of evidence before it. The Minister further submits at [31] that the omission to the letter from Mr Singh does not amount to a jurisdictional error.
In relation to grounds 3 & 4, it is clear from the submissions made by the applicant that one of his key concerns about the way in which the Tribunal dealt with his application was the reliance placed by the Tribunal upon evidence about his period of employment with his former employer. In particular, the applicant complains that the Tribunal failed to properly consider the evidence before it about the date on which his employment came to an end. This is a central issue to the question before the Tribunal as to whether the applicant complied with the conditions of his visa.
At their highest, the applicant’s submission takes issue with the Tribunal’s reliance on information provided by his former employer. In particular, the applicant takes issue with this reliance in circumstances where the applicant asserts that his former employer failed to comply with its legal obligations by failing to properly provide him with his employment entitlements, including his superannuation entitlements.
Applying an impressionistic assessment of the merits of the applicant’s claims in grounds 3 and 4, it cannot be said in my view, that the applicant has no reasonable prospects of success.
Grounds 5 to 10
Having come to this view in respect of grounds 3 and 4, it is strictly speaking not necessary for me to consider the remaining grounds of review. For completeness however, I do note that the applicant’s prospects of success in respect of grounds 5 to 10 would not in my view reach the threshold of a reasonably arguable case, even applying an impressionistic assessment of the merits of those grounds.
Ground 5 asserts that there was insufficient evidence or no evidence to support various findings. The applicant does not identify which findings he takes issue with. In the absence of any such particulars, this ground is meaningless.
Ground 6 asserts that the Tribunal denied the applicant procedural fairness. Again the applicant does not provide any particulars of the alleged denial of procedural fairness. In the absence of such particulars, this ground is meaningless.
Ground 7 and 8 claim there has been an error of law. Again without further particulars these two grounds are also meaningless. Moreover, I accept the Minister’s submissions that there is nothing on the face of the Tribunal’s decision record to suggest that the Tribunal misunderstood the effect of section 116 of the Act. The Tribunal’s reasons for concluding that the powers under section 116 were enlivened, are set out in its decision record, and are cogent and intelligible.
Ground 9 asserts that the Tribunal preferred evidence other than that provided by the applicant. Again without further particulars, this ground is meaningless.
As to ground 10 alleging bias, such an allegation must be expressly made and distinctly proved and it has not been in this case. The applicant has led no evidence to substantiate this claim. This ground is not therefore reasonably arguable.
CONCLUSION
Having found that there is a reasonably arguable case in relation to grounds 3 and 4, I am satisfied that it is in the interests of justice for an extension of time to be granted in this case.
I therefore order that the time for filing of the applicant’s application for judicial review be extended to 9 July 2019. I further direct that this matter be referred to a Registrar for future programming.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mercuri. Associate:
Dated: 12 August 2021
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