Ibrahimi v Minister for Immigration

[2019] FCCA 182

FEDERAL CIRCUIT COURT OF AUSTRALIA

IBRAHIMI v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 182

Catchwords:
MIGRATION – Application for extension of time – application refused and dismissed – costs as agreed or assessed.

Legislation:

Migration Act 1958 (Cth), ss.477, 477A

Cases cited:

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
NAIS v Minster for Immigration [2005] HCA 77
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797

Applicant: LAILA IBRAHIMI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1310 of 2017

Judgment of: Judge Obradovic

Hearing date: 7 September 2018

Date of Last Submission: 7 September 2018

Delivered at: Parramatta

Delivered on: 5 February 2019

REPRESENTATION

Counsel for the Applicant: Mr Abbas

Solicitors for the Applicant: R & J Lawyers

Counsel for the Respondents: Mr Leedam

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed 20 June 2017 seeking an extension of time is dismissed.

2. The applicant is to pay the costs of the first respondent as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1310 of 2017

LAILA IBRAHIMI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application seeking an extension of time to apply for judicial review of the decision of the Administrative Appeals Tribunal dated 15 November 2016.

2. The applicant is an Australian citizen who was the sponsor of the visa applicant whose application was made on 17 September 2012.

3. The Administrative Appeals Tribunal affirmed the decision by the delegate of the Minister for Immigration and Border Security not to grant the visa applicant a Class BO Subclass 115 (Remaining Relative) visa.

4. The applicant purports to be the visa applicant’s biological mother.

5. The visa applicant, in support of her claim that she was the biological daughter of the sponsor, provided the delegate with inter alia a marriage certificate and death certificate of her husband.

6. On 14 July 2015 the delegate refused to grant the visa on the basis of lack of probative evidence regarding the visa applicant’s identity and that the visa applicant was not credible and had fabricated her claims.

7. The delegate noted that the visa applicant had not provided evidence in support of her relationship with the sponsor or the death of her husband as requested on two occasions and further that the visa applicant did not provide original copies of documents that had been translated.

8. The applicant in these proceedings applied to the Administrative Appeals Tribunal for a review of the delegate’s decision on 6 August 2015.

9. The sponsor (the applicant in these proceedings), the visa applicant and her sister and brother in-law gave oral evidence before the Administrative Appeals Tribunal on 17 October 2016.

10. The Administrative Appeals Tribunal invited the sponsor to provide further evidence in support of her application including photographs and travel documents by 7 November 2016 and invited her to indicate whether she would undertake DNA testing by 9 November 2016.

11. The Administrative Appeals Tribunal affirmed the delegates decision on 15 November 2016 on the basis that it was not satisfied that evidence supported the claim that the sponsor was the visa applicant’s mother and that it was not satisfied with independent evidence of the visa applicant’s identity or with the lack of original documents provided. It was further concerned that the visa applicant’s marriage certificate was issued nine years after the marriage.

12. The applicant in the current proceedings relies on an application filed 21 June 2017 seeking an extension of time to apply for judicial review of the decision of the Administrative Appeals Tribunal and raises the following grounds in support of that application:

    a)The applicant has a good case on its merits with every likelihood of its success;

    b)The applicant has obtained DNA evidence which conclusively proves that the review applicant is the biological mother of the visa applicant;

    c)The applicant believes that the Tribunal decision suffers from jurisdictional error;

    d)No prejudice would be caused to the first respondent in case extension of time is allowed;

    e)The impact on the applicant for not extending time for making the application is arguably considerable as the applicant does have grounds available to establish an arguable case of jurisdictional error;

    f)The refusal to extend time will result in serious prejudice to the visa and review applicants which outweighs the prejudice, if any, likely to be caused to the first respondent;

    g)In the circumstances of the case, there is a reasonable explanation for the applicant’s delay; and

    h)There is nothing in this matter which will adversely affect the interests of the public at large in case extension of time is granted.

Consideration

1. Pursuant to s.477(1) the application for judicial review needed to be filed on 20 December 2016, which is 35 days from the date of the Administrative Appeals Tribunal decision. It was filed on 21 June 2017.

2. Pursuant to s.477(2) of the Act, the Court has the power to extend that 35 day period if the Court is satisfied that it is necessary in the interest of the administration of justice to make the order extending the time.[1]

   [1] The other criterion for extension of time is that an application for that order has been made in writing, which certainly occurred in these proceedings.

3. In Hunter Valley Developments Pty Ltd v Cohen[1984] FCA 176; (1984) 3 FCR 344, Wilcox J at 348 -349 indicated that five factors should be considered in determining whether relief ought to be given[2]:

   a)Applications for an extension of time are not to be granted unless it is proper to do so; the legislative time limits are not to be ignored.

   b)There must be some acceptable explanation for the delay.

   c)Any prejudice to the respondent in defending the proceedings, caused by the delay, is a material factor militating against the grant of an extension.

   d)The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.

   e)The merits of the substantial application are to be taken into account in considering whether an extension is to be granted.

   [2] Referred to in SZMNO v Minister for Immigration and Citizenship [2009] FCA 797

4. The decision of Wilcox J has become the classic authority on the kinds of considerations which should be taken into account by a court in determining how to exercise a discretion to extend time. The list of factors has been endorsed repeatedly in the Federal Court as well as the Federal Circuit Court, as providing guidance on how the exercise of discretion might be approached.[3] 

   [3] MZABP v Minister for Immigration [2015] FCA 1391, Mortimer J at [41]

5. It will seldom be in the interest of the administration of justice to grant leave where an appeal has little or no prospects of success.[4] However, what is appropriate is for the Court to examine the grounds of appeal at what should be a “reasonably impressionistic level”[5] with the correct approach being expressed as to whether a ground of appeal is arguable or reasonably arguable. The approach to be taken under s.477(2) ought not be transferred into a full de facto hearing.[6]

   [4] MZABP v Minister for Immigration [2015] FCA 1391, Mortimer J at [62]

   [5] MZABP v Minister for Immigration [2015] FCA 1391, Mortimer J at [62]

   [6] MZABP v Minister for Immigration [2015] FCA 1391, Mortimer J at [63]

Delay

1. The delay in filing the application is approximately six months, which is not an insignificant delay – particularly when compared to the statutory time limit of 35 days. It is a delay which is some 5-6 times over the time limit.

2. The applicant has not filed any evidence in support of the extension for time application except for an affidavit annexing the decision appealed from. She has not deposed to any matters explaining the delay. The only reasons which are provided are by way of submissions made on her behalf. Those reasons are as follows:

   a)The dismissal of the review application by the Tribunal adversely affected mental health of the applicant in the form of severe depression and anxiety. She lost hope and energy to further follow visa matter of her daughter.

   b)The applicant has no knowledge of the English language.

   c)The applicant is a lay person who has no understanding of the Australian migration or legal system and laws relevant to his (sic) matter. As such, she had no understanding of the rules and procedures of this honourable Court and for that matter of the rules relating to the time period required to file the judicial review application.

3. The applicant submits that the reason for such a delay in filing an application for judicial review was because “the decision of the Tribunal had significant negative impact on the mental health of the applicant. She became extremely depressed and was unable to concentrate on visa matter for her daughter for the entire relevant time.”

4. A letter from a clinical psychologist dated 13 December 2017 which is annexed to the submissions is said to be in support of that particular assertion. The letter asserts that the applicant “is suffering from Severe Depression and Anxiety”. It is not clear when the diagnosis was made and by whom. It is not clear what the cause or trigger of the illness was. The letter asserts that the applicant’s “overall mental and physical health is continuously being affected by her stresses related to her daughter in Iran.” This is the extent of the matters upon which the applicant relies in respect of the assertion as to the cause of the applicant’s illness. Furthermore, there is no evidence from the psychologist of any incapacity caused by the applicant’s illness. 

5. The sponsorship form which the applicant completed was done with the assistance of a migration agent, Mr Hany Boulous, the same person who assisted the visa applicant in her application.[7] Mr Boulous is also the person who was authorised by the visa applicant to communicate with the Department of Immigration and Citizenship in respect of the visa application[8] and who did so communicate. The decision of the delegate in respect of the visa application was emailed to Mr Boulous on 14 July 2015.

   [7] CB 16, 25

   [8] CB 45

6. An “Acknowledgement of Application – Miss Laila Ibrahimi” dated 10 August 2015 was sent by the Tribunal to Mr Boulous “as the authorised recipient of the applicant.” The hearing before the Tribunal on 17 October 2016 was attended by the review applicant’s representative, Mr Boulous.[9] All correspondence between the Tribunal and the review applicant was sent via Mr Boulous.

   [9] CB 192

7. It does not appear from any of the documents before the Court that the applicant’s lack of proficiency in the English language at any point in time caused her any difficulties in the sponsorship process or the Tribunal review process. It is not clear how it is said to have caused her difficulties in the appeal process. It is a matter not explained by the applicant.

8. The fact sheet provided to the applicant with the decision and reasons of the Tribunal, clearly sets out a 35 day limit for a review application to be filed to this Court.

9. The Application to this Court was filed on behalf of the applicant by a legal practice.

10. When considering the explanation for delay, both individually and collectively, the Court is left to wonder how it is that each of the matters asserted by the applicant caused the delay. For there to be an acceptable explanation one might expect the applicant to actually explain how her health, perhaps combined with her lack of the English language and knowledge of legal process, caused her not to file her application in time.

11. As noted earlier in these reasons, the applicant is legally represented in these proceedings. She was previously represented by a migration agent, not only as the sponsor to the visa but also during the Tribunal review process. In light of the applicant’s reasons for delay provided in the submissions, one might have expected an affidavit deposing to the fact that she was not aware of the time limit despite being represented by a migration agent and later a lawyer.  One might also have expected an explanation as to how she knew to file her application with the Court and seek the extension of time if she was not aware of the rules relating to time limits and when she became so aware. None of that is forthcoming.

12. The applicant concedes that the delay in filing her application to this Court is considerable.

13. Overall, the Court does not find that the delay in filing has been adequately explained.

Prejudice to Respondent

1. The first respondent does not assert to suffer from any prejudice that could not be adequately addressed by an order for costs.

2. However, the absence of such prejudice alone does not warrant the grant of an extension of time.

Merits of substantive application

1. The fact that “the applicant believes she has a good arguable case with every likelihood of its decision in her favour” is of no consequence.

2. The grounds of the application for judicial review are set out  as follows:

   a)The migration decision under review suffers from jurisdictional error and as such is not a ‘privative clause decision’ within the meaning given by subsection 474(2)…

   b)The Tribunal erred in not offering procedural fairness to the applicant while conducting the review.

   Particulars

   1.The Tribunal just gave only one opportunity to the review applicant to respond to the invitation regarding the provision of DNA evidence of her biological relationship with the visa applicant.

   2.There was nothing to stop the Tribunal from allowing any further time to the applicant in considering and responding to the Tribunal’s invitation.

   c)The Tribunal acted unreasonably in regards to the invitation to the review applicant to provide DNA evidence.

   Particular

   1.The circumstances of the case did not justify the hurried decision by the Tribunal.

   d)The Tribunal failed to have due regard to the available evidence of the identity of the visa applicant and her relationship with the review applicant.

   Particulars

   1.   The Tribunal accepted that both the review applicant and her other daughter confirmed to the Department in an interview in 2013 that the review applicant had a daughter in Iran (the visa applicant)

   2.   The translated copy of the Tazkira (identity card) was provided to the Tribunal showed that the visa applicant was the daughter of the husband of the review applicant.

   3.   The translated copy of the marriage certificate provided to the Tribunal showed that the visa applicant was the daughter of the husband of the review applicant.

   4.   There was no evidence to show that Tazkira and marriage certificate were forged or bogus documents.

   e)The applicant reserves the right to add, amend and delete the grounds of this application.

3. Grounds 1 and 5 are not proper grounds for review. An assertion that the decision is affected by jurisdictional error without any particulars or submissions is of no assistance. It is not capable per se of establishing any jurisdictional error by the Tribunal. Ground 5 does not raise any allegation.

4. Ground 2 asserts a lack of procedural fairness. It appears to the Court that this ground might be misconceived. The applicant did not at any point in time request any further time to provide information and evidence which she was invited by the Tribunal to provide. She simply did not provide the information by the date requested to do so by the Tribunal. She did not tell the Tribunal that she was in the process of obtaining such information and evidence or that she needed further time.

5. The invitation to provide DNA evidence dated 19 October 2016 read as follows:

   “Please indicate whether or not you intend to provide DNA evidence by completing and returning the attached “Acceptance/Decline of Invitation to Provide DNA Evidence Form – MR Division” by 9 November 2016. If you choose to provide DNA evidence, please provide us with evidence of the arrangements that have been made for DNA testing along with your completed form.

   If you choose to provide DNA evidence, the DNA collection process cannot commence until each applicant who will be undertaking DNA testing supplies a passport photograph, with his or her name written on the back of the photograph, to the nearest Australian embassy.”

6. The review applicant provided her sample to the laboratory on 8 November 2016. The visa applicant did not provide any sample. It is asserted she could not do so because by the time the applicant provided the Tribunal with the application for DNA testing the Tribunal had already delivered its decision.

7. The review applicant did not need to provide the DNA evidence by 9 November 2016, she just needed to tell the Tribunal that she was going to do so (or not going to do so). She did neither of those things.

8. To suggest that the Tribunal should somehow, of its own volition, have extended the time for compliance with the invitation for further information without any request to do so, is an interesting concept which attempts to put the onus entirely on the Tribunal and non on the applicant herself. The Tribunal completed its review process after no response was received from the applicant following an invitation issued to her by the Tribunal to advise whether she will provide further evidence and information.

9. Ground 3 alleges that the Tribunal acted unreasonably. It is a ground that is essentially tied in with the second ground. The applicant in essence asserts that the decision of the Tribunal was a hurried decision.

10. In circumstances where the application to the Tribunal was lodged on or about 6 August 2015 and the decision of the Tribunal was made on 15 November 2016 after a process which intimately involved the review applicant and where on 19 October 2016 she was asked to indicate by 9 November 2016 whether she intended to provide DNA evidence, and she made no such indication, it will be an almost impossible task for the applicant to convince anyone that the Tribunal’s decision was hurried.

11. There is no statutory or other requirement that the Tribunal notify the applicant of when it will make its decision.[10]

    [10] NAIS v Minster for Immigration [2005] HCA 77 at [5]

12. In respect of ground 4, the Court notes that the Tribunal’s reasons at [17] to [22] considered the evidence which the applicant asserts it failed to have regard to. The Tribunal ultimately afforded little weight to such evidence. Ground 4 appears on its face to be an application for an impermissible merits review of the Tribunal’s decision.

13. The grounds asserted have little to no merit.

The Court’s Discretion

1. There is no automatic right to an extension of time. The discretion to extend time is given to enable justice to be done between parties.

2. The applicant has not satisfied the Court that an extension of time is necessary to enable justice to be done between the parties.

3. The application for extension of time is dismissed with costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date:  5 February 2019