NWWJ v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 361
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
NWWJ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 361
File number: MLG 1453 of 2022 Judgment of: JUDGE FORBES Date of judgment: 18 May 2023 Catchwords: MIGRATION – protection visa – application for extension of time to seek judicial review of decision of Administrative Appeals Tribunal – delay of 486 days before extension of time sought – applicant incarcerated for a period – applicant provided financial support to dissidents – merit of substantive application for review considered – extension of time not granted Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, r 29.05
Migration Act 1958 (Cth), ss 36, 65, 477
Cases cited: Bechara v Bates [2018] FCA 460
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCA 28
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZABP v Minister for Immigration (2015) 242 FCR 585
MZZGC v Minister for Immigration and Border Protection [2015] FCA 842
Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 26 April 2023 Place: Melbourne Solicitor for the Applicant: In person Solicitor for the Respondent: The Australian Government Solicitor Solicitor for the Respondent: Mr Creedon ORDERS
MLG 1453 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NWWJ
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
18 may 2023
THE COURT ORDERS THAT:
1.The Applicant’s application under s 477A(2) of the Migration Act 1958 (Cth) for an extension of time is dismissed.
2.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 FORBES
INTRODUCTION
On 18 January 2021 the Administrative Appeals Tribunal (the Tribunal) affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the applicant a Protection (class XA) (subclass 866) visa (the visa). The applicant seeks judicial review of that decision.
An application for judicial review is required to be made within 35 days of the date of the Tribunal’s decision.
In this case, the application for review was filed in this Court on 23 June 2022, some 486 days or approximately 16 months outside the time limit prescribed by section 477(1) of the Migration Act 1958 (the Act) for the making of such applications.
Pursuant to s 477(2), the Court may extend the time period for the making of applications for judicial review.
The principles generally applicable upon such an application are well established. They include that consideration be given to the extent of the delay, the adequacy of the applicant’s explanation for the delay, any prejudice a respondent might suffer because of the delay and the merits of the substantive application.[1]
[1] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349
The applicant has made an application for an extension of time. For the reasons that follow, I have concluded that the application must be dismissed.
BACKGROUND
The applicant is a Vietnamese citizen who first arrived to Australia on 1 July 2009 as a dependent to his ex-wife’s subclass 457 visa.
Subsequent to his arrival the visa on which the applicant entered Australia was cancelled, as was a later visa which was issued to him in 2015. In separate proceedings the applicant sought judicial review of the cancellation decision including by seeking special leave to the High Court.
The applicant spent a period in a New South Wales correctional facility and was released into immigration detention on 25 May 2019. He has remained in immigration detention since that time.
Relevantly, on 24 March 2020 the applicant applied for a protection visa under s 65 of the Act[2]. In support of his application, the applicant provided the Department of Home Affairs (the Department) with various documents, including updated visa applications, letters of support and certificates.
[2] Court Book (‘CB’), p 13
The applicant’s claims for protection are outlined in his protection visa application, updated applications subsequently provided by the applicant and in his response to a letter from the delegate requesting that the applicant answer questions in relation to his claims.[3]
[3] CB 240 – 243
As summarised by the delegate[4], the applicant’s claims for protection are as follows:
(a)The applicant claims that he would be harassed, arrested, tortured and killed by the Vietnamese government if he returns to his country as he is a member of Phong Trao Dan Toc Chan Hung Nuoc Viet movement, he is a human rights activist, had supported other human rights activists and had criticised the Vietnamese government;
(b)The applicant fears harassment from the authorities because of his criminal record in Australia;
(c)The applicant said that his family in Vietnam would be harmed and oppressed;
(d)When the applicant was living in Vietnam, he experienced no harm and was not involved in any activities because it was not safe to do so. He started his activities after coming to Australia;
(e)The applicant financially supported and worked with the Phong Trao Dan Toc Chan Hung Nuoc Viet (CHNV) movement to overturn the Communist dictatorship regime and had designed a new national Vietnamese flag; and
(f)The applicant stated that he cannot relocate because it is not safe for him anywhere in Vietnam and he cannot seek state protection.
[4] CB 253
Relevantly, in relation to his claimed support of the CHNV movement, the applicant provided a financial summary of transfers (the financial document) which suggested that he had sent money to various dissidents and protesters in Vietnam, including supporters of the movement who had been arrested or jailed.
On 11 May 2020, the delegate of the Minister refused the visa application[5] on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations as set out in s 36(2)(a) or 36(2)(aa) of the Act.
[5] CB 248
The Tribunal
On 15 May 2020 the applicant lodged an application with the Tribunal seeking review of the delegate’s decision.[6]
[6] CB 279
On 12 June 2020 the applicant was invited to attend a hearing before the Tribunal which was to take place on 25 June 2020 by way of video conference.[7]
[7] CB 303
The applicant attended the virtual hearing on 25 June 2020 and was assisted by a Vietnamese Interpreter. The hearing was adjourned to allow the applicant further time to obtain and provide further documents.[8]
[8] CB 314
On 10 August 2020, the Tribunal invited the applicant to a further hearing scheduled for 25 August 2020.[9] The applicant sought an adjournment of that hearing in order to allow him to receive documents from the Department following a Freedom of Information request. The Tribunal agreed to reschedule the hearing.
[9] CB 359
On 21 October 2020, the Tribunal invited the applicant to a further hearing scheduled on 5 November 2020 by video conference.[10] The applicant attended this hearing but the hearing was terminated as the applicant expressed concerns about a noise he could hear on the telephone line as well as other administrative matters.[11]
[10] CB 390
[11] CB 413
On 21 December 2020, the Tribunal invited the applicant to attend a further hearing scheduled on 7 January 2021 by video conference.[12] The applicant attended the hearing and was assisted by a Vietnamese Interpreter.
[12] CB 441
Tribunal decision
On 18 January 2021, the Tribunal affirmed the decision of the delegate to refuse to grant the applicant a Protection visa.
At paragraphs [4]-[16] of its reasons the Tribunal recorded the circumstances surrounding the three hearings at which the applicant had been invited to give evidence and present arguments. The Tribunal noted that throughout the hearing process the applicant had been generally reluctant to engage in discussions about his claims or to answer questions in relation to his protection visa application, including on occasion his outright refusal to answer questions from the Tribunal. In fact at [16] of its reasons the Tribunal records that the hearing on 7 January 2021 was terminated after it became clear that the applicant did not wish to provide evidence or information about his protection claims.
At paragraphs 15 to 23 of its written outline of submissions filed in this proceeding, the Minister’s solicitor accurately and in my view fairly summarised the Tribunal’s findings in relation to the applicant’s claims for protection as follows:
Fear of harm due to political opinion
15The Tribunal considered the applicant’s claim to fear harm as a result of his political activism and financial support of political activists at [29]-[38] of its reasons.
16The Tribunal considered the applicant’s claims arising from his online activism on social media platforms, however it found it could not make a reliable finding in relation to this without more detail from the applicant and that there was insufficient evidence before it to establish the applicant’s claim. Ultimately, the Tribunal did not accept the applicant’s claims that he has engaged in activism which would bring him to the attention of the government. The Tribunal also found it did not have sufficient evidence to demonstrate the applicant would commence or continue to engage in political activism if he returned to Vietnam: [30]-[32].
17The Tribunal expressly considered the evidence relied upon by the applicant to demonstrate his financial support of political activists [i.e. the financial document], and the Tribunal considered that the document suggested the applicant had provided financial support to known activists in Vietnam. However, the Tribunal found that it had been unable to discuss this document further with the applicant and raise questions it had, because the applicant had “by his conduct refused to answer questions about his protection claims”. The Tribunal concluded that without the opportunity to discuss the document and the recipients listed with the applicant, it could not place any weight on it as reliable evidence of financial support given by the applicant to opponents of the Vietnamese Government: [33]-[34].
18In the absence of evidence, the Tribunal did not accept the Tribunal’s father and step-brother had been questioned about the applicant by government authorities: [35].
19In relation to the applicant’s claims to have attended protests in Australia, the Tribunal accepted that the applicant had attended a small number of protests in Australia but did not accept that the applicant’s involvement in these protests, on the basis of the evidence and information before the Tribunal, established that he would have a profile as an anti-Vietnamese government activist in Vietnam: [36].
20Ultimately, the Tribunal accepted the applicant holds political opinions opposed to the Vietnamese Government and that he is sympathetic to activists in Vietnam. However, the failure to provide oral evidence about his claims, including evidence about those he sent money to, meant the Tribunal was not satisfied the applicant had established his claims to be an anti-government activist with a profile in Vietnam: [38].
Fear of harm due to religion
21The Tribunal considered the applicant’s claim to fear harm as a Christian and a Catholic. In considering this claim, the Tribunal had regard to country information and information provided by the applicant relating to his grandfather and father, and found the applicant’s claim was not established: [40]-[42].
Fear of harm due to conviction in Australia
22The Tribunal considered the applicant’s claim to fear harm as a result of his criminal conviction in Australia, as well as having regard to relevant country information which indicates that Vietnam did not prosecute individuals who had served punishment prior to returning to Vietnam. The Tribunal accepted the country information in relation to this claim and found the claim was not established: [43].
Complementary protection
23The Tribunal found for the same reasons it had already given, it was not satisfied that the applicant was at risk of significant harm due to his political opinions, his religion or because of his criminal conviction: [49]-[50].
APPLICATION FOR JUDICIAL REVIEW
On 23 June 2022 the applicant lodged an application for judicial review of the Tribunal’s decision and an application for an extension of time to seek judicial review.
The applicant’s substantive application for review relies on one ground with four particulars, set out as follows:
The Second Respondent failed to consider an integer of the Applicant’s claim, namely that the Applicant feared serious harm due to financial support provided by the Applicant to known political activists in Vietnam, evidenced in a document summarising money transfers made by the applicant (“the financial document”)
Particulars
a. The Applicant raised a fear of harm on the basis of his political activism, in particular the fact that he financially supported high-profile political activists in Vietnam (at [24]).
b. The Applicant provided a financial summary of transfers (the financial document) that evidence money transfers to 4 political activists in Vietnam, 3 of whom had been reportedly questioned, arrested and/or imprisoned (see [33]).
c. The Second Respondent stated that the financial transfers ‘suggest on their face that the applicant has provided financial support to some known activists in Vietnam’ but she raised concerns about the circumstances that resulted in the money transfers and ultimately found that no weight be placed on the financial document as reliable evidence of financial support given to anti-government activists in Vietnam (at [34]).
d. By placing no weight on the financial document, the Second Respondent failed to consider an integer of the Applicant’s claim, namely that he was at risk of serious harm because he has previously provided financial support to known political activists in Vietnam.
As mentioned earlier, section 477(1) of the Act relevantly provides that any application for judicial review of the Tribunal’s decision needed to be filed within 35 days i.e. by 22 February 2021. In this case, the application was filed 486 days or about 16 months out of time.
The applicant also filed an affidavit in which he deposed that he filed the application after seeking and receiving assistance from the Asylum Seeker Resource Centre.
On 5 September 2022 a Registrar of the Court made orders to prepare the application for hearing. Those orders required, inter alia, that the applicant file and serve any written submissions, any amended application or any additional evidence on which he intended to rely no later than 28 days prior to the hearing. The orders also directed the Minister to file and serve any written submissions or further evidence no later than 14 days prior to the hearing.
Extension of time - principles
Section 477(2) of the Act allows this Court to grant an extension of time within which a review application can be made if it is satisfied that it is necessary in the interests of the administration of justice to do so.
It is well-settled that in determining whether it is in the interests of the administration of justice to extend time under section 477 of the Act, there are a range of factors to which the court can have regard[13]. Whilst there is no exhaustive list of factors, commonly the following matters are regarded as relevant to the exercise of the court’s discretion:
(a)the length of the delay;
(b)any explanation for the delay;
(c)prejudice to the Minister if the extension of time were granted; and
(d)the merits of the substantive application.[14]
[13] Bechara v Bates [2018] FCA 460 per Perry J at [17] – [18] and the authorities cited therein
[14] See MZABP v Minister for Immigration (2015) 242 FCR 585.
The power to extend the time for filing a review application, such as that permitted by section 477(2), was recently the subject of judicial consideration by the High Court in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCA 28 (‘Katoa’).
In Katoa the High Court did not take issue with these settled principles, although it did consider the jurisprudence which had developed regarding how the court is to assess the merits of the substantive application, in particular, whether the court can assess the ‘merits’ on anything other than an ‘impressionistic’ basis.
As to the assessment of merits in the context of an extension of time application, the plurality in Katoa (Kiefel CJ, Gageler, Keane and Gleeson JJ) stated at paragraphs [17] and [18]:
17.… it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However … there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Similar comments were also made by the balance of the court in Katoa (Gordon, Edelman and Steward JJ) from paragraph [62]:
62.… Where an application for an order under s 477A(2) has been made to the Federal Court “specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order”, the question for the Federal Court - the statutory question - is whether the Court is satisfied that it is necessary in the interests of the administration of justice to grant the extension. There are no mandatory considerations. A number of factors may be relevant and it is for the judge hearing the application to decide what is both necessary and sufficient to resolve the issues raised in the application. In assessing whether it is necessary in the interests of the administration of justice to grant the extension under s 477A(2), the merits of the underlying application may be, and often are, considered and given considerable weight. In some, maybe most, extension of time applications, the judge can and does consider the merits of the underlying application at what might be described as a threshold level - inquiring whether the proposed grounds of review enjoy reasonable prospects of success. But in order to resolve the facts and issues raised in an application, the judge may sometimes consider that it is necessary to have regard to the merits of the underlying application in greater detail.
63.… the Federal Court does not ordinarily fall into jurisdictional error by concluding that it is not necessary in the interests of the administration of justice to grant an extension of time after having undertaken something more than a preliminary or threshold assessment of whether the proposed grounds of review enjoy reasonable prospects of success.
Hearing of the application
Before turning to consider the various factors relevant to the extension of time application, it is necessary to make some observations about some procedural issues and the conduct of the hearing before me on 26 April 2023.
On 12 April 2023 solicitors for the Minister filed and served written submissions opposing the application for an extension of time. By an affidavit of service affirmed on 21 April 2023 the Minister’s solicitor, Mr Creedon, deposed that an electronic and hard copy of the court book had been served on the applicant and a sealed copy of the Minister’s submissions had been served by email.
Notwithstanding the Court’s orders made on 5 September 2022, prior to the day of hearing the applicant had not filed or served any amended application, any written submissions or any evidence on which he intended to rely in support of his application. However, in the half hour immediately before the commencement of the hearing the applicant sent two emails to my chambers.
The first email, sent to the Court at 1:56pm on 26 April 2023 attached a miscellany of material of some 55 pages. It included numerous letters of reference written in support of the applicant over the years, an application for a bridging visa, a fact sheet from the Australian Border Force, a case outline from the applicant’s family law proceedings and various certificates and other documents.
The second email sent to the Court at 2:03pm attached an eight page statement written by the applicant and dated 24 April 2023. Broadly, the statement addresses the human rights activities that the applicant has engaged in and asserts that he will be “vulnerable” and at a high risk of being prosecuted if he returns to Vietnam. In the submission, the applicant also declared his innocence to the domestic violence charges which resulted in his incarceration, referred to examples of Vietnamese citizens being convicted of terrorism and stated that he is being subjected to torture and harassment in immigration detention.
The emails were drawn to my attention by my associates but I decided not to consider the material in any detail until I heard from the applicant as to what use he intended to make of the various documents and to hear his explanation as to how the material was relevant to his application for an extension of time.
As the applicant is currently in immigration detention, the hearing was conducted by electronic means. The applicant was self-represented at the hearing, although he was afforded the assistance of a Vietnamese Interpreter. For most of the proceedings the applicant sought to rely on the Interpreter – although it did become quite apparent at one stage, when he decided to address the Court directly[15], that he had a reasonable command of English.
[15] Transcript P12.15-13.10
At the commencement of the proceeding the applicant confirmed that he had received an electronic copy of the court book and the Minister’s written outline of submissions. The Court then went to considerable length to explain the nature of the proceeding (being an application for extension of time), the matters and considerations the Court would take into account to determine the application (based on the well-established principles articulated above) and the procedure the Court would adopt to hear from both the applicant and the Minister’s representative, including the applicant being afforded a right to reply. The Court was at pains to ensure that the applicant understood that the Court would not be undertaking a merits review of the protection visa application, nor was the Court authorised to grant him a protection visa or bridging visa or other form of immigration document.
The applicant, through the Interpreter, asked many questions regarding procedure, including whether he could record the proceeding, how he could obtain a transcript, whether the hearing was open to the public, whether the Administrative Appeals Tribunal was participating in the hearing, the identity of those who had logged in to the Microsoft Teams hearing and the consequences for him in the event his application was unsuccessful. The transcript of the proceeding will record the exchanges between the applicant and the Court about these issues and they need not be rehearsed in these reasons. Suffice to say the Court was careful to explain its judicial function.
Among those exchanges, I did ask the applicant to explain the relevance of the documents he had emailed to the Court that afternoon and the use he wished to make of that material in the hearing. Although he did not address the question squarely, I took the applicant to say that he considered the material relevant because it was evidence to show why he should be granted a protection visa. He also stated that the documents also supported his claim that he is being tortured and mistreated whilst in immigration detention. He did not however take the Court to any of the material in the oral submissions which followed.
I invited the applicant on several occasions to explain why he did not seek a review of the Tribunal’s decision within 35 days of 18 January 2018 and I reminded him that the Court’s task in the hearing was to determine whether an extension of time should be granted. Despite redirecting him to this question several times, the applicant’s responses generally failed to engage with the issue.
The applicant informed the Court that he did not know why an extension of time was required and stated that he just wanted a protection visa or bridging visa. He stated that if he was not granted a protection visa he would remain in detention and would be subjected to torture. Despite ongoing efforts to direct the applicant to relevant issues the applicant sought to ventilate a series of historic and current allegations regarding the conduct of Australian immigration officials, the Tribunal and his treatment at the hands of the criminal justice system in New South Wales. The applicant also sought to traverse an array of grievances about his current conditions in immigration detention, including allegations of torture, mistreatment and abuse, including during the hearing itself.
CONSIDERATION
Length and explanation for delay
The substantive application and the extension of time application were filed in this Court on 28 June 2022. The substantive application should have been made within the 35 day period as specified in s 477(1) of the Act. The application is therefore nearly 16 months out of time.
Rule 29.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 requires that if an extension of time is sought in a migration proceeding an application must be supported by an affidavit which explains the delay and showing why it is necessary in the interests of the administration of justice for the court to grant the extension.
The extension of time application was supported by an affidavit of the applicant sworn on 23 June 2022. In his affidavit, the applicant deposes to the following matters to explain the delay:
(a)he did not have a lawyer at the Tribunal [6];
(b)he has been engaged with pursuing judicial review of the cancellation of a partner visa application, which he lodged with the High Court on 11 November 2021 but was unsuccessful. He submitted a Ministerial intervention request in late 2021 and is still waiting for an outcome [7]; and
(c)on 11 April 2022 he was connected with the Asylum Seeker Resource Centre. They returned his call on 17 May 2022, offered him a legal appointment on 18 May 2022 and provided advice and assistance to make the application [8].
In addition to the matters raised in his affidavit, it appears from his wide-ranging submissions at hearing that the applicant advances the following further reasons to explain his delay in filing the judicial review application[16]:
(a)the alleged delay of 16 months is not accurate;
(b)he has an ongoing concern that information from the Tribunal hearing could be leaked and that the Tribunal decision or his application for judicial review may become known to authorities in Vietnam;
(c)he has not had legal advice;
(d)since the date of the Tribunal’s decision, two people within the group of activists he supports have been arrested and sent to jail;
(e)he continues to be concerned for people in his organisation who are still in Vietnam;
(f)by reason of these concerns he had trouble making a decision about whether or not to seek judicial review; and
(g)he has been in detention and has been occupied in pursuing proceedings against the Office of Public Prosecutions and other arms of the criminal justice system in New South Wales to remedy a malicious prosecution and a miscarriage of justice which resulted in his incarceration.
[16] Transcript P10.20-11.20
The Minister submitted that the 486 day delay in this case should be regarded as very significant. Citing an observation by Gagelar J in Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89, the Minister submitted that a delay of 16 months required a case to be “exceptional” for an extension of time to be granted.
The Minister submitted that the applicant’s lack of legal representation before the Tribunal cannot explain the delay in filing an application for review in this Court. The Minister submitted that there is no right of legal representation in judicial review proceedings[17]. The Minister submits that even on the applicant’s own evidence he is familiar at least to some extent about legal processes and noted that without legal representation the applicant appears to have been able to progress other judicial review applications including seeking special leave to the High Court and pressing various complaints against the New South Wales criminal justice system.
[17] See Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 and SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702.
In his affidavit filed in support of the application, the applicant refers to a request for ministerial intervention. An intervention request is not of itself an acceptable explanation for the delay in lodging an appeal[18]. In any event, the request for intervention identified by the applicant does not relate to the protection visa application which was before the Tribunal and does not explain why he was unable to seek review of the Tribunal’s decision within the prescribed time frame.
[18] e.g. MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 at [15]
As to the applicant’s concern that information provided to the Tribunal or the Court on a judicial review application could be leaked or that an application might put members of his group at risk, the Minister observed that these matters had not previously been raised prior to the hearing. The Minister also submitted that the applicant had given no evidence or explanation as to why, despite those concerns, he was sufficiently comfortable to file an application for judicial review in June 2022 and to press an application for an extension of time in April 2023.
The Minister also submits that the applicant’s detention and his focus on pursuing allegations of alleged malicious prosecution and miscarriage of justice do not constitute an acceptable explanation for delay. The Minister submits that these other unspecified allegations and legal proceedings are wholly unrelated to the Tribunal’s decision about the applicant’s migration status and are not an adequate explanation for delay. The Minister submits that the applicant has simply chosen to prioritise these other legal issues rather than seek review in this Court.
On my assessment, it would appear that the applicant has been alive to legal issues pertaining to his migration status. I am not satisfied that the applicant has been ignorant of his legal rights including the right to seek judicial review of the Tribunal’s decision.
It does not appear that the applicant’s limited English language skills prevented him from seeking appropriate advice. It is noteworthy that when the applicant did eventually seek legal advice from the Asylum Seeker Resource Centre, he was provided that advice within a month and he was assisted to make an application for judicial review very shortly thereafter. From this I infer that the delay in filing an application for judicial review was a result of the applicant not having sought advice, rather than any delay on the part of those from whom he sought it.
In my view, having regard to the extent of the delay, the applicant’s explanation is unsatisfactory. I agree with the Minister’s submission that the applicant has prioritised other legal issues. I am not satisfied that the applicant has given a reasonable and adequate explanation for his delay in making his substantive application to this Court and this weighs against the extension of time application being granted.
Prejudice to the Minister
Although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time, the Minister concedes that there is no prejudice to him if an extension of time were granted.
Merit of grounds in the substantive application
I now turn to an assessment of the merits of the substantive application as a relevant consideration in determining the application for an extension of time.
It will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional cost and resources that would impose upon the parties and Court and the impact on other Court users.
As the High Court observed in Katoa, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In my view, this is such a case. The delay is lengthy and the explanation for it has been unsatisfactory and unpersuasive.
The Minister submits that the ground of review and four particulars, read cumulatively, amount to an argument that the weight (or lack thereof) the Tribunal accorded to evidence provided by the applicant resulted in the Tribunal failing to consider the applicant’s claim that he was at risk of serious harm as a result of his provision of financial support to known activists in Vietnam.
The Minister submits, and I accept, that the applicant’s sole ground for review lacks merit and this is ultimately determinative against him on the application for an extension of time.
Read fairly and as a whole the Tribunal’s reasons reveal that at the various hearings in which he participated the applicant provided little evidence or argument to assist the Tribunal to consider the veracity of his written claims for protection. The Tribunal notes that the applicant was reluctant to or refused to respond to questions and that he did not provide any clear evidence about his protection claims. As mentioned earlier, the applicant’s refusal to provide any evidence or information about his protection claims ultimately resulted in the Tribunal hearings being terminated.
Notwithstanding the applicant’s lack of engagement, it is plain at paragraphs [24] and [25] of the reasons that the Tribunal did identify each of the applicant’s written claims for protection. Relevantly, among those claims, the Tribunal identified the applicant’s claim to fear harm arising from his financial support to the Chan Hung Nuoc Viet group and noted his reliance on the financial document as evidence of financial transfers to individuals mentioned in the document.
At [33] of its reasons the Tribunal accepted that the list of claimed money transfers relied upon by the applicant did appear to include transfers to some persons who can be identified as activists in Vietnam. The reasons identify the individuals named by the applicant in his written statement including details of their political activities. However, the Tribunal then notes that it “would have discussed these persons, their political activities and the applicant’s relationship with them at hearing but as noted above, the applicant has by his conduct refused to answer questions about his protection claims”.
Accepting that the financial transfers suggest “on their face” that the applicant had provided financial support to some known activists in Vietnam, the Tribunal again noted at [34] that:
“… the document and its content raises various concerns for the Tribunal which it has not had the opportunity to discuss with the applicant. For example, the Tribunal would have questioned the applicant on the source of the money in the list, the reason for the transfers, the history of the applicant’s relationship with the transferees, how the transfers were arranged or solicited and the activism which the recipients were undertaking. Further, it appears that not all of the activists have been imprisoned or subjected to human rights abuses as claimed in the Tribunal would have clarified their status with the applicant…”
In the final sentence of [34] the Tribunal concludes, unsurprisingly in my view, that “without the opportunity to discuss the [financial transfers document] and the recipients, the Tribunal does not consider that any weight can be placed on the document itself as reliable evidence of financial support given by the applicant to opponents of the Vietnamese Government”.
At [38] the Tribunal found that the applicant had not established his claim to fear harm due to his political opinion. The Tribunal noted that it had considered the applicant’s written claims and accepted that he appeared to hold political opinions opposed to the Vietnamese Government and which were sympathetic to activists there. However, “… bearing in mind his failure to provide oral evidence about the various aspects of his written claims such as… the activists to whom he claims to have sent money and their current situation …” the Tribunal did not accept the applicant’s claim that there is a real chance that he will suffer serious harm due to his political opinion now or in the reasonably foreseeable future if he returns to Vietnam.
In my view it cannot be said that the Tribunal failed to consider the applicant’s claims. The applicant’s financial support of activists was indeed an integer of his claim to fear harm due to his political opinion. However, the Tribunal considered the evidence before it in relation to that integer and gave cogent reasons for placing no weight on the financial transfers document as reliable evidence.
The weight to be placed on such evidence as part of its fact-finding function is a matter for the Tribunal[19]. The decision of the Tribunal not to grant the applicant a protection visa was open to the Tribunal and was reasonable having regard to the evidence before it. The applicant’s complaint in the substantive application seeks impermissible merits review.
[19] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282
In my view, the applicant has no realistic prospect of successfully establishing that the decision of the Tribunal is affected by jurisdictional error. Given the lengthy unexplained delay in seeking judicial review, this lack of merit weighs heavily against the applicant.
CONCLUSION
For the reasons set out above, I am not satisfied that the interests of justice require that an extension of time be granted in this case. In these circumstances, the application filed in this Court is dismissed.
I will hear the parties on the question of costs.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 18 May 2023
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