RWDX v Minister for Immigration and Border Protection
[2020] FCA 391
•10 March 2020
FEDERAL COURT OF AUSTRALIA
RWDX v Minister for Immigration and Border Protection [2020] FCA 391
Review of: Application for an extension of time to seek judicial review: RWDX and Minister for Immigration and Border Protection [2019] AATA 123 File number(s): VID 919 of 2019 Judge(s): O'CALLAGHAN J Date of judgment: 10 March 2020 Legislation: Migration Act 1958 (Cth) ss 36(1C), 476A, 477A(1), 500(1)(c), 501(2) Cases cited: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 Date of hearing: 10 March 2020 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No catchwords Number of paragraphs: 29 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr M Hosking Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
VID 919 of 2019 BETWEEN: RWDX
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
10 MARCH 2020
THE COURT ORDERS THAT:
1.The application for an extension of time to seek judicial review of the decision of the Administrative Appeals Tribunal made on 12 February 2019 is refused.
2.The applicant pay the first respondent’s costs, as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
These reasons for judgment were delivered ex tempore at the hearing on 10 March 2020 and accompany the orders set out above.
The applicant seeks an extension of time within which to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 12 February 2019.
The Tribunal decided to affirm a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse to grant the applicant’s application for a protection visa. Both the delegate and the Tribunal found that the applicant did not satisfy the criterion in s 36(1C) of the Migration Act 1958 (Cth) (the Act). At the time of the Tribunal’s decision, that section provided that:
A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
An application to this court for judicial review of a migration decision must be made within 35 days of the date of the migration decision. The applicant in this case was, therefore, required to file his application by 19 March 2019: see s 477A(1) of the Act.
The applicant was born in Khartoum, now in the Republic of Sudan. He arrived in Australia on 22 October 2003 on a refugee and humanitarian (class XB, subclass 200) visa.
Since arriving in Australia, the applicant has committed 30 offences here, some of which involved serious violence. On 9 March 2012, following a trial by jury, the applicant was convicted of aggravated unlawfully causing harm with intent to cause harm, the maximum penalty for which was 13 years’ imprisonment. The applicant was sentenced to a term of imprisonment of two years and 50 weeks, with a non-parole period of 18 months. That offence is a particularly serious crime within the meaning of s 36(1C) of the Act.
On 23 June 2015, the Minister cancelled the applicant’s refugee and humanitarian visa under s 501(2) of the Act.
On 21 February 2017, the applicant applied for a protection visa (class XA, subclass 866).
On 9 October 2017, a delegate of the Minister found that the applicant was a person in respect of whom Australia owed protection obligations, but found that the applicant did not satisfy the criterion in s 36(1C) of the Act. Accordingly, the delegate refused to grant the application for a protection visa.
On 10 October 2017, the applicant applied to the Tribunal for a review of the delegate’s decision under s 500(1)(c) of the Act.
On 12 February 2019, the Tribunal affirmed the delegate’s decision. The only issue before the Tribunal was whether the applicant satisfied the criterion. Like the delegate, the Tribunal found that the applicant did not.
Section 477A(2) of the Act provides that this court may by order extend the 35 day period in which an application for review must be made as the court considers appropriate if:
(a)an application for that order has been made in writing 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; and
(b)the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
In this case, neither the applicant’s written application to this court, nor his affidavit in support of it, specifies why the applicant says that it is necessary in the interests of the administration of justice for this court to grant an extension of time. At the hearing of the application today, the applicant, who appeared without the benefit of legal representation, said in substance that the reason for the delay in making the application is that he has been in detention, that is to say, both in jail and in immigration detention, for five years. He has no legal background and no support, and he was exhausted. He also said that no one ever told him that there was a time period within which to appeal.
The Minister submits that the court should refuse to grant the extension of time sought because it is not necessary in the interests of the administration of justice to do so.
The principles governing the grant of an extension of time are well established. In considering whether it is necessary in the interests of the administration of justice to grant an extension of time, the court has regard to considerations such as: (1) the length of the delay; (2) whether an adequate explanation has been given for the delay; (3) any prejudice to the Minister from the delay; and (4) the prospects of success of the proposed application. In relation to the fourth of those matters, it is established on the cases that it will rarely be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success. An assessment of the merits of the proposed application at this stage should be made at a “reasonably impressionistic level”: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, 598-599 [62].
Taking each of those considerations in turn, the applicant’s delay in making his application is a reasonably lengthy one. That is to say, five months.
Other than the explanation provided by the applicant in his submissions before me today, he has provided no explanation for the delay. The explanation given today, in substance, was that he had never been told a time period applied and that he, obviously enough, has no legal background. I shall proceed on the assumption, for the purposes of this application, that the explanation provided by the applicant today is an adequate explanation for the five-month delay.
As to prejudice, the Minister submits that he would not suffer any prejudice by reason of any extension.
Importantly, however, the Minister submits that the applicant’s proposed application has little or no prospects of success. It is necessary, therefore, to turn to the grounds that are sought to be agitated by the applicant should his application for an extension of time be granted.
The applicant’s proposed grounds of review are set out in his draft originating application and in an affidavit in support of his application for an extension of time.
The grounds in the draft application are:
1.The Respondents erred in law with the error being a jurisdictional [error] by failing to consider in full the protection obligations Australia owed to the applicant.
2.The Tribunal erred in its decision by failing to consider the applicant[’]s significant mental health issues …
3.The respondent failed to consider the impact of the decision to refuse the protection visa application on the applicant’s closest family and friend[s], including the poor health condition of his single mother, whom he will be the carer along with his siblings.
The Minister submits, and I agree, that none of those grounds has any prospect of success. It was not necessary for the Tribunal to consider whether the applicant was a person in respect of whom Australia owed protection obligations. As the Tribunal observed, the delegate had found that the applicant was such a person, and that aspect of the delegate’s decision was not challenged on review.
It is not clear on what basis the applicant says that it was necessary for the Tribunal to have regard to his mental health issues. Neither his written nor oral submissions made to the Tribunal made any claim that the applicant had mental health issues that were relevant to the Tribunal’s consideration of the criterion in section 36(1C) of the Act. The Applicant has not identified any material before the Tribunal which indicated that the applicant had mental health issues or that those issues were relevant to the Tribunal’s consideration of that criterion. To the extent that the applicant may be taken to have referred to his issues with alcohol, those were plainly considered by the Tribunal, as its reasons demonstrate.
As to the third ground in the draft application, it was not necessary for the Tribunal to consider the impact of the decision to refuse to grant a protection visa on the applicant’s family and friends. That matter was not relevant to the s 36(1C) criterion.
There are additional grounds contended for by the applicant in his affidavit. They are numbered two through seven as follows:
(2)The AAT failed to adopt a fair process in reviewing a decision made by [a] delegate of the Minister to cancel the applicant[’s] protection visa.
(3)The AAT failed to review the decision of a delegate of the minister that was not reasonably open on the materials.
(4)The AAT failed to consider the applicant’s claims:
(a) There are other reasons to revoke the protection visa cancellations
(b)The applicant believes that the AAT failed to acknowledge and validate the latter’s effort in rehabilitation and commitments towards a crime-free life.
(5)The first respondent did take into account irrelevant considerations;
(6)The second respondent failed to properly undertake the jurisdictional task of review;
(7)The delegate of the minister failed to ask the correct question to properly [address] the intended question by definition.
The Minister submits, and I agree, that none of those grounds has any prospect of success.
To the extent that the grounds are directed to the delegate’s decision, this court has no jurisdiction in relation to them: see s 476A of the Act.
To the extent that the grounds are addressed to the Tribunal’s findings, they have no substance. The applicant has not identified any way in which the process adopted by the Tribunal was unfair. It is clear from a review of the Tribunal’s reasons that it conducted a review of the delegate’s decision. The Tribunal did consider the applicant’s claims about his attempts at rehabilitation, and the applicant has not identified any other claim that the Tribunal failed to consider.
For those reasons, the applicant’s proposed application has no prospect of success. The present application is accordingly refused.
I certify that the preceding twenty‑nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate:
Dated: 24 March 2020
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