MZZLD v Minister for Immigration
[2016] FCCA 2368
•9 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZLD v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2368 |
| Catchwords: MIGRATION – Review of a decision of the Refugee Review Tribunal – application for a Protection (Class XA) visa – application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) – Court not satisfied necessary in the interests of the administration of justice to make the order. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), Sch.1. Migration Act 1958 (Cth), ss. 36(2)(a), 36(2)(aa), 189(1), 417, 417(1), 424(1), 476, 477(1), 477(2) |
| Cases cited: AZAFJ v Minister for Immigration & Border Protection [2016] FCA 291 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 |
| Applicant: | MZZLD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1789 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 5 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 9 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr McBeth |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Mr Yuile |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Order 1 of the orders made on 23 August 2016 and order 1 of the orders made on 5 September 2016 are discharged.
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1789 of 2016
| MZZLD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application filed on 19 August 2016 seeking judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’). The Applicant seeks judicial review of the Tribunal’s decision under s.476 of the Migration Act 1958 (Cth) (‘the Act’). The Applicant also seeks an extension of time under s.477(2) of the Act in which to review the Tribunal’s decision. This matter first came before the Court on 23 August 2016. It was urgently listed. On that day the Court ordered as follows:-
“1. Until 4pm Australian Eastern Standard time on Monday 5 September 2016 or further order the Minister not remove the Applicant MZZLD from Australia.
2. The Applicant file and serve any amended application, affidavits and/or submissions sought to be relied upon by 29 August 2016.
3. The Respondent file and serve any affidavits and/or submissions sought to be relied upon by 2 September 2016.
4. Otherwise the application is adjourned for hearing on the extension of time application only on 5 September 2016 at 10:30am.
5. Costs reserved.”
In accordance with the above orders, the application for an extension of time was heard on 5 September 2016. These reasons deal with that application for an extension of time as contained in amended application filed 29 August 2016. Such application was opposed by the First Respondent.
Section 477(2) of the Act provides the Court with a discretion to extend time if the Court is satisfied that such extension is necessary in the interests of justice. Section 477(2) of the Act is relevantly as follows:-
“(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court 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 Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
It was not in dispute before the Court that the consideration of that discretion generally entails the taking into account of the length of the delay, the explanation for the delay, the prejudice to the First Respondent and some limited assessment of the merits of the Applicant’s case.
In the Court considering the length of the delay and the explanation for the delay, the historical background is considered below.
History
The historical background is as set out in an affidavit affirmed by Ms Elena Arduca, on 22 August 2016, being an affidavit filed on behalf of the First Respondent and on which the First Respondent relies.
The commencement of the immigration history of the Applicant, as set out in annexure EIA-1 of that affidavit is as follows:-
a)on 11 May 2012, the Applicant arrived on Christmas Island as an illegal maritime arrival;
b)on arrival, the Applicant initially claimed to be a Mr X and provided aliases Y and Z. During identity and Protection visa assessment it was confirmed, against the Applicant’s Iraqi national ID card, that he was neither X, Y or Z, but, in fact, the Applicant, who was born on 1 January 1958;
c)on 24 August 2012, the Applicant lodged an application for a Protection visa;
d)on 13 September 2012, the Applicant was granted a Bridging visa E, valid until 1 May 2013, and he was released from immigration detention;
e)on 19 November 2012, the Applicant’s Protection visa application was refused by a delegate of the First Respondent;
f)on 26 November 2012, the Applicant sought merits review with the Tribunal and on 3 April 2013 the Tribunal affirmed the decision of the delegate to refuse the Applicant’s Protection visa application;
g)on 8 May 2013, the Applicant was granted a second Bridging visa E, by the First Respondent, which was valid until 8 August 2013;
h)on 22 May 2013, the Applicant sought judicial review of the Tribunal decision of 3 April 2013 to affirm refusal of his Protection visa application.
On 30 July 2013, and by consent, orders were made in chambers, by Judge Reithmuller, wherein constitutional writs were issued and the Applicant’s application for a Protection visa was remitted to the Tribunal, requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent, dated 19 November 2012, according to law. The Court noted that:-
“The first respondent accepts that the second respondent erred in finding that any penalty that (sic) the applicant for leaving Iraq illegally on a false passport was pursuant to a law of general application, without identifying the law in question or whether its application as appropriate and adapted to achieving a legitimate object.”
On 28 August 2013, the Applicant was granted a third Bridging visa E by the First Respondent, valid until 31 December 2013. On 22 November 2013 the Tribunal differently constituted affirmed the decision of the delegate to refuse the Applicant’s Protection visa application.
As set out in a further affidavit of Ms Arduca, affirmed 2 September 2016 on which affidavit evidence the First Respondent also relies, the Applicant’s application for humanitarian consideration, under s.417 of the Act, was considered, on 29 November 2013, by an officer of the Department of Immigration and Border Protection (‘the Department’), pursuant to the ministerial guidelines for stay in Australia, under public interest guidelines assessment. The officer found that the Applicant’s case did not satisfy the requirements for consideration of the exercise of the Minister’s discretion, under s.417(1) of the Act. This consideration for Ministerial intervention occurred as a matter of Departmental policy and procedure. It was not applied for by the Applicant.
On 18 May 2015, the Applicant was granted a fourth Bridging visa E by the First Respondent, valid until 29 June 2015. On 30 June 2015, the Applicant became an unlawful non-citizen.
On 30 June 2015 the Applicant was detained, under s.189(1) of the Act at the Department’s office in Cairns and transferred to Wickham Point Immigration Detention Centre. On 1 July 2016, the Applicant was transferred to the Melbourne Immigration Transit Accommodation.
The Applicant was scheduled for involuntary removal from Australia on 24 August 2016, departing Melbourne and travelling to Basra, Iraq. A certificate of identity was obtained for the Applicant, valid until 13 January 2017.
Applicant’s evidence
The Applicant relies upon an affidavit affirmed by him on 24 August 2016, in support of his application for an extension of time. The Applicant deposes in that affidavit, to an inability to speak or read English and it was necessary for an interpreter to interpret and certify the contents of the Applicant’s affidavit. The Applicant also relies upon affidavit evidence affirmed by Ms Melinda Anne Jackson, solicitor for the Applicant on 19 August 2016 and 29 August 2016.
On the Applicant’s evidence, between 22 of November 2013 and 27 of December 2013, being the 35 day period in which the Applicant was required to file an application for judicial review of the Tribunal decision of 22 November 2015, in accordance with s.477(1) of the Act, the Applicant unsuccessfully sought legal assistance with his case. This is also the affidavit evidence of Ms Melinda Jackson, Solicitor for the Applicant, affirmed 19 August 2016. Thereafter, the Applicant’s evidence is that he did not know what else to do. Ms Jackson deposed in her affidavit, that the Applicant did not understand his legal status in Australia thereafter and was not aware that he was an unlawful non‑citizen.
The Applicant was advised by the Department that the Department renewed his Bridging visa on numerous occasions and that the last Bridging visa given to him expired on 30 June 2015. It was at that point that he was taken into detention and would have been in no doubt that he was an unlawful non-citizen. The Applicant stayed at Wickham Point Immigration Detention Centre, in Darwin, for approximately one year. The Applicant stated in paragraph 13 of his affidavit, affirmed 24 August 2016, that around the beginning of 2016 he was visited by a lawyer called Lex from NT Legal Aid. His evidence is that he “met with Lex in detention and gave him all my documents, but I never heard from Lex again”. His affidavit evidence is further, that around the same time he asked for assistance from the Darwin Asylum Seeker Support and Advocacy Network. They did not assist him. The Applicant did nothing further whilst in detention at Wickham Point.
The Applicant’s evidence is that on 30 June 2016 he was transferred to the Melbourne Immigration Transit Accommodation and that about one month after he had arrived in Melbourne, he spoke with a Ms Kerr from the Asylum Seeker Resource Centre. The Applicant deposed to depending on other people for“my legal situation”. At no time did he attempt to lodge any application for judicial review himself. For extended periods of time he took no relevant action of any type.
Consideration
On 19 August 2016, the Applicant filed an application for judicial review with the assistance of the Asylum Seeker Resource Centre. The Applicant requires an extension of time to enable the Court to consider the substantial application.
The urgent injunction was granted as sought by the Applicant on 23 August 2016.
The extension of time must be “necessary in the interests of the administration of justice”.[1]
[1] Migration Act 1958 (Cth), s.477(2)(b).
The First Respondent does not seek to assert prejudice by the delay, though that in itself is insufficient to warrant the grant of an extension. The phrase “in the interests of the administration of justice” is broad. Wilcox J’s judgment in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 provides some guidance as to the exercise of such a discretion. Whilst not being exhaustive, the following matters are relevant to the necessary consideration:-
a)the Court will not grant the application for an extension of time unless satisfied that it is proper to do so;
b)action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
c)any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay;
d)the mere absence of prejudice is not enough to justify the grant of an extension; and
e)considerations of fairness as between the applicants and other persons otherwise in like positions are relevant.
Delay
After receiving the Tribunal decision in late November 2013, the Applicant sought legal assistance from three sources prior to the expiration of the statutory time limit to seek judicial review of the Tribunal decision. None of the organisations approached by the Applicant were able to provide him with assistance.
The Applicant claims that he did not know he was an unlawful non‑citizen, as he has very limited English and no understanding of the Australian legal system. The Applicant was granted a number of Bridging visa’s E during his, in excess of, four years in Australia and participated in two Tribunal hearings. He was also ultimately returned to a detention centre. Placed in context it is not possible to accept that the Applicant had no knowledge of immigration matters as claimed by him.
The delay in this case is significant. It is from late December 2013 to late August 2016. Almost three years. The explanation given by the Applicant is that he was, at certain limited periods of time, unsuccessfully seeking legal assistance. He also claimed language and health difficulties, together with his lack of understanding of the Australian legal system.
The Applicant’s attempts to obtain legal assistance were interspersed with substantial periods of non-action for which he provides no explanation to the Court. Indeed, by the end of December 2013, he took no action until early 2016, by which time he had spent six months in immigration detention. He then made no further attempt to seek assistance or file any application seeking an extension of time until presented with notification for his removal from Australia in August 2016. The Applicant fails to provide any satisfactory or sufficient explanation for his inordinate delay in seeking judicial review.
Delay is an important consideration as was said by Bromwich J in AZAFJ v Minister for Immigration & Border Protection [2016] FCA 291. His Honour said in paragraphs 56 to 60 therein the following:-
“56. Delay in seeking discretionary relief can be an important consideration in declining to grant that relief: see Aala at 108 [56], quoting R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400.
57. In some cases, even when there has been an express finding by a court of jurisdictional error such as by way of denial of procedural fairness, sufficient or extreme delay or other like conduct and the absence of any acceptable explanation for it may be a sufficient reason alone to deny the grant of discretionary relief under s 39B of the Judiciary Act: see NAUV v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 124; (2004) 82 ALD 784 [38]-[45] (special leave to appeal refused: NAUV v MIMIA [2005] HCATrans 96); see also SAAP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 322-4 [79]-[84].
58. Thus if the claim of jurisdictional error is at best questionable and the delay is both substantial (for example, well outside a statutory time limit, or concerning a case below in which there has been such a delay) and without any real explanation, let alone a satisfactory explanation, that will tend to support declining to exercise a discretion to intervene.
59. The delay from the decision of the Federal Circuit Court on 19 May 2015 until the filing of the present application on 21 January 2016 was simply dismissed in the applicant’s submissions as being “[a]s it happened”. It was baldly asserted that the applicant’s circumstances offered “a sufficient explanation” as to why he did not meet the deadline for his application for review in the Federal Circuit Court. It was also said that the merits of his claim of jurisdictional error were such that the interests of justice warranted an extension of time to enable his application for review to be heard in this Court.
60. The explanation for the delay was not developed any further at the hearing, save as to a reference to an affidavit of the applicant sworn 6 January 2016 at [9]-[16]. Those paragraphs go no further than to outline the applicant’s sporadic and general attempts to seek legal advice and to seek ministerial intervention, noting financial and linguistic constraints. None of those circumstances are either exceptional or acceptable for such prolonged delay.”
The merits of the Applicant’s case
The Applicant refers to the decision of Mortimer J in MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 for the proposition that the grounds as set out in the amended application in this case need only be not “plainly hopeless.”
At paragraph 63, in MZABP v Minister for Immigration & Border Protection [2015] FCA 1391, Her Honour Mortimer J said as follows:-
“The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]-[48]). 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.”
The First Respondent submits that the grounds as set out in the amended application filed by the Applicant do not rise to the level as described by Her Honour in the preceding paragraph.
The grounds of application are as follows:-
“1. The Tribunal failed to consider a relevant consideration, being that the applicant’s brother was owed protection obligation/s was found to be of Bidoon ethnicity.
Particulars
a. The Tribunal, differently constituted, had made a decision in the case of 1305271 relating to his brother (the brother’s decision) on 16 September 2013;
b. The applicant/his advisor put the Tribunal on notice of the brother’s decision during the hearing conducted on 15 October 2013 and the submission from the advisor dated 11 October 2013;
c. The claim arose clearly on the material before the Tribunal.
2. In the alternative to ground 1 above, the Tribunal failed to consider an integer of the claim, being the applicant’s membership of a particular social group constituted by the applicant’s family/imputed Bidoon ethnicity.
3. The Tribunal applied the wrong legal test in considering State protection, in considering the protection of “tribal links in Iraq”.
Particulars
a. The Tribunal states, “if he were to relocate in the future due to issues that arise in the reasonably foreseeable future he has links to the Al-Anezi tribe whose sheik lives north of Karbala who could provide him protection.”
b. The phrase “protection of that country” in Article 1A(2) means the formal protection of the government of the State and its agencies as a matter of international law. It does not extend to international protection afforded by a non-state entity.
4. [deleted]
5. The Tribunal failed to consider an integer of the applicant’s claim, namely his claim to fear persecution by reason of his race or ethnicity as a Bidoon.
Particulars
a. The Tribunal considered the applicant’s claim to be a Bidoon only in the context of his claim to be stateless and the Tribunal’s assessment of his nationality.
b. The Tribunal never considered the applicant’s claim to be of Bidoon ethnicity and never made any finding on his race or ethnicity.
c. The claim clearly arose from the material before the Tribunal.
6. The Tribunal’s finding that the applicant is “one of those former Bidoons from Kuwait” is irrational, in that it assumes that it is possible for a person to lose or change his or her race or ethnicity.”
The Court considers the grounds relied upon by the Applicant have little or no prospect of success. The Tribunal’s statement of decision and reasons is a statement of a clearly articulated and logical reasoning process. Matters were put to the Applicant of concern to the Tribunal on the history as provided by the Applicant, which included country information which did not support the Applicant’s claims. The Tribunal’s findings were evidently open on the evidence before it. Natural justice was afforded to the Applicant. Essentially the Tribunal found the Applicant’s claims to lack credibility. The Tribunal did not find the Applicant to be a “reliable, credible or truthful witness” and found him to have fabricated his claims. The Tribunal did not accept that the Applicant was a stateless Bidoon but found that he had been granted Iraqi citizenship.
The Applicant directly raised the issue of his brother’s favourable Tribunal decision which had been made on 16 September 2013 at the Tribunal hearing on 15 October 2013. The Applicant argued that the findings of the brother’s Tribunal constituted a relevant consideration in the Applicant’s case before the Tribunal. The decision was brought to the Tribunal’s attention by the Applicant both orally and in submissions as evidenced by the affidavit of Melinda Anne Jackson affirmed 29 August 2016. The Applicant’s complaint is that there is no mention in the Tribunal decision of the brother’s Tribunal decision or of any of the findings of the brother’s Tribunal. That is not a proper complaint.
The Tribunal’s task in the matter before it was to consider whether the Applicant satisfied the criteria for a Protection visa as set out in s.36(2)(a) or (aa) of the Act. That consideration was as to the particular circumstances and claims of the Applicant for protection. The Tribunal was not, pursuant to the Act, bound to take the brother’s Tribunal decision into account. The Tribunal did however make reference to the departure of the Applicant and his brother from Iraq and at a time when the Applicant claimed that two of his nephews were shortly prior thereto kidnapped by an unknown group. The Tribunal considered that claim as to the kidnapping to have been fabricated as was the Applicant’s claim to have had many of his relatives receive threatening letters, though notably the Applicant himself had not.
There was not before the Tribunal a “substantial, clearly articulated argument relying upon established facts”[2] that the Applicant claimed to be a member of a social group constituting his family as alleged by the Applicant.
[2] Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24], referred to with approval in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55].
Whether or not the proper test is that the State must provide protection that was not a matter which arose on the Tribunal’s findings. The Tribunal found the Applicant did not require protection at all.
The Applicant’s claims that he was a ‘stateless Bidoon’ and ‘returnee from the west’ were clearly dealt with by the Tribunal. Any findings on race or ethnicity were subsumed into the Tribunal’s broader or more general findings.
There is a need for finality in legal processes. This assists the efficient use of public resources and produces a lessening of legal costs to all parties. The impact of progressing a case with significant delay and no satisfactory explanation for that delay upon other litigants in the Court awaiting a hearing is considerable and adverse. When to that is added a case which has no serious prospect of success, the Court must conclude that it is not in the interests of the administration of justice to extend time as sought.
Costs shall follow the event. Given this is an extension of time application only an amount that is less than that provided for in Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) is awarded in the exercise of the Court’s discretion.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 9 September 2016
4
9
3