SINGH v Minister for Immigration
[2019] FCCA 310
•13 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 310 |
| Catchwords: MIGRATION – Skilled (Residence) (Class VB) Subclass 885 – application for extension of time – application for review of the decision by the Administrative Appeals Tribunal – applicant almost two years out of time – insufficient explanation for delay – not in the interests of the administration of justice to grant the application – extension of time refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.05 Migration Act 1958 (Cth), ss.466, 467 Migration Legislation Amendment Regulations 2011 (No.1) (Cth), sch.4 para.4 |
| Cases cited: Applicant Y v Minister for Immigration and Citizenship [2008] FCA 367 MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478 MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 Ramlu v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1735 Robinson v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 148 FCR 182 |
| Applicant: | SUKHRAJ SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2154 of 2016 |
| Judgment of: | Her Honour Judge C. E. Kirton QC |
| Hearing date: | 22 May 2018 |
| Date of Last Submission: | 22 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 13 February 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the First Respondent: Solicitors for the Second Respondent: | Ms Groves of Australian Government Solicitor The Second Respondent filed a submitting notice save as to costs |
ORDERS
The application for an extension of time is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2154 of 2016
| SUKHRAJ SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a citizen of India. He arrived in Australia on 17 October 2005 on a student visa. On 21 December 2009 the Applicant applied for a Skilled (Residence) (Class VB) Subclass 885 visa (Visa).
The Applicant seeks an extension of time to apply for judicial review of a decision of the Migration Review Tribunal (later amalgamated into the Administrative Appeals Tribunal (Tribunal)) affirming a decision of the First Respondent’s (Minister) delegate to refuse to grant the Visa.
The Applicant applied for judicial review of the Tribunal’s decision on 5 October 2016. As the Tribunal’s decision was made on 15 September 2014, the 35 day time limit for applying for judicial review expired on 20 October 2014: s.477(1) Migration Act 1958 (Cth) (Migration Act). The Applicant is therefore almost two years out of time. Section 477(2) of the Migration Act provides however that the Court may order that the 35 day period be extended if the conditions in s.477(2)(a) and (b) are satisfied.
Synopsis
I have determined that pursuant to s.477(2) of the Migration Act it is not in the interests of the administration of justice to grant the application. I refuse the extension of time application and order the Applicant to pay the Minister’s costs.
Background
The Applicant applied for the Visa on 21 December 2009. The Department of Immigration and Border Protection (Department) notified the Applicant on 13 November 2012 that he was required to undergo a health assessment to determine whether he met the health requirements for the grant of the Visa. The Applicant attended a health assessment on 4 December 2012.
On 18 February 2013 a Medical Officer of the Commonwealth (MOC) provided an opinion that the Applicant suffered from: “Significant chronic renal disease” and that the “condition is likely to be progressive”[1]. The MOC concluded that the Applicant did not satisfy the health requirements of Public Interest Criterion 4005 (PIC 4005) of sch.4 to the Migration Regulations 1994 (Cth) (Regulations) and therefore did not meet the health requirements for the grant of the Visa (First MOC Opinion).
[1] Court Book (CB) 90.
The Applicant was sent the First MOC Opinion and invited to comment. In a letter to the Department on 10 April 2013 the Applicant said that he:
a)Was only diagnosed with renal disease in mid-2012.
b)Lived a healthy lifestyle and he did not understand why he had developed renal disease.
c)Would to go back to India if he needed an organ transplant in the future.
d)Had private health insurance which should cover any medical services that might otherwise result in significant cost to the Australian community.
The Applicant provided further documentary evidence of his health insurance on 13 May 2013. This information was subsequently provided by the Department to a MOC. On 18 June 2013 a MOC again determined that the Applicant did not meet PIC 4005[2] (Second MOC Opinion).
[2] CB 154-155.
A delegate of the Minister refused to grant the Visa on 24 June 2013 on the basis that the Applicant did not satisfy PIC 4005 as required by cl.885.224 of sch.2 to the Regulations (Delegate’s Decision)[3].
[3] CB 150-162.
On 27 June 2013 the Applicant lodged an application for review of the Delegate’s Decision in the Tribunal[4].
[4] CB 169-180.
The Applicant’s representative wrote to the Tribunal on 15 August 2013 and requested that the medical examinations be conducted again, on the basis that:
[…] the applicant would most likely pass the medicals with his condition having markedly improved from the time that the medicals were considered at the time of decision[5].
[5] CB 184.
The Tribunal provided the Applicant with the necessary documents to request a further opinion from a MOC and on 18 February 2014 the Applicant forwarded the relevant form and fee.
On 26 June 2014 a MOC provided another opinion, which again concluded that the Applicant did not satisfy PIC 4005 (Third MOC Opinion)[6]. The Tribunal gave the Applicant’s representative an opportunity to comment on 16 July 2014. In response on 29 July 2014 the Applicant’s Representative expressed the view that the Third MOC Opinion was not reasonable or correct but that they:
[…] note the limited negligible capacity of the applicant to challenge this view and that The Member is “bound” by a “valid” decision of the MOC[7].
[6] CB 254-255; Tribunal Decision, dated 15.9.2014, Annexure A.
[7] CB 259.
Legislative Framework
At the time the Applicant applied for the Visa and at the time of the Delegate’s Decision, cl.885.224 of the Regulations required primary applicants for the grant of a Subclass 885 visa to satisfy the criteria in PIC 4005.
PIC 4005 was amended by the Migration Legislation Amendment Regulations 2011 (No.1) (Amending Regulation). The amended wording applied to visa applications made but not finally determined before 1 July 2011[8].
[8] Migration Legislation Amendment Regulations 2011 (No.1) (Cth), sch.4 para.4.
PIC 4005(1)(c) provided:
(c) is free from a disease or condition in relation to which:
(i) a person who has it would be likely to:
(A) require health care or community services; or
(B) meet the medical criteria for the provision of a community service;
during the period described in subclause (2); and
(ii) the provision of the health care or community service would be likely to:
(A) result in a significant cost to the Australian community in the areas of health care and community services; or
(B) prejudice the access of an Australian citizen or permanent resident to health care or community services;
regardless of whether the health care or community services will actually be used in connection with the applicant;
Division 2.5 A of the Regulations contained ‘Special provisions relating to certain health criteria’. Regulation 2.25A required the Tribunal to seek the opinion of a MOC in determining whether PIC 4005 was met. The Tribunal was bound to accept the opinion of the MOC as correct for the purposes of deciding whether a person met a requirement or satisfied a criterion of PIC 4005. Regulation 2.25A(3) provided:
(3)The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.
Tribunal Decision
The hearing at the Tribunal took place on 1 September 2014. The Applicant appeared before the Tribunal with the assistance of his migration agent. On 15 September 2014 the Tribunal affirmed the decision under review (Tribunal Decision)[9].
[9] CB 276-283.
The Tribunal noted that the determinative issue in the review was whether the Applicant met PIC 4005, as he had been diagnosed with chronic renal disease.
The Tribunal was satisfied that having regard to reg.2.25A of the Regulations, that in determining whether the Applicant met PIC 4005 a MOC opinion was required. The Tribunal noted that it must take the MOC opinion to be correct, however it must first be satisfied that the MOC applied the correct test in line with the decisions in Robinson v Minister for Immigration and Multicultural and Indigenous Affairs[10] and Ramlu v Minister for Immigration and Multicultural and Indigenous Affairs[11].
[10] (2005) 148 FCR 182.
[11] [2005] FMCA 1735.
The Tribunal then considered:
a)The First MOC Opinion and the Second MOC Opinion.
b)A MOC opinion initiated by the Applicant during the review which had an outcome recorded on 25 February 2014 as “Did Not Meet”.
c)The Third MOC Opinion.
The Tribunal also considered medical evidence provided by the Applicant and found that the Applicant was “extremely health conscious, and ensures that he remains in the best of health”[12]. However the Tribunal was satisfied that the Third MOC Opinion was a valid opinion for the purpose of PIC 4005 and on the basis of that opinion the Applicant did not satisfy the health criteria for the grant of the Visa.
[12] CB 282.
Procedural History
On 5 October 2016 the Applicant filed in this Court an application against the Minister and the Tribunal for judicial review of the Tribunal Decision (Application). The Application is supported by an affidavit affirmed by the Applicant on 5 October 2016, annexing the Tribunal Decision (Applicant’s First Affidavit).
The Application applies for an order that the time for making the application be extended under s.477 of the Migration Act. The grounds of the extension of time application (Extension of Time Application Grounds) are as follows:
(1)I was suffering from sever (sic) financial hardship and hence I was left with no option but to seek ministerial intervention against the unfair refusal of my visa.
(2)Now I can afford judicial review fees so hence lodging judicial review with great (sic)
The grounds of the application is that the Tribunal Decision is affected by jurisdictional error because (Grounds of Application):
(1)My medical was not performed correctly and the sunshine hospital (sic) conducted the wrong tests leading to incorrect medical outcome which further led to my visa refusal.
(2)I am absolutely fit and fine and happy to go for any medical tests further.
The Minister filed a Response on 12 October 2016 seeking that the Application be dismissed on the basis that the Tribunal Decision was not affected by jurisdictional error. Costs are also sought.
On 29 March 2017 procedural orders were made by a Registrar of this Court. On 3 May 2017 the Applicant filed a further affidavit (Applicant’s Second Affidavit).
Extension of Time Application
An application to the Federal Circuit Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s.476 of the Migration Act in relation to a migration decision must be made to the Court within 35 days of the date of the migration decision: s.477(1). In the case of a migration decision made by the Tribunal the date of the migration decision is the date of the written statement pursuant to s.477(3)(b) and s.368(2) of the Migration Act. In this case the date of the relevant migration decision is the date of the Tribunal Decision, being 15 September 2014.
The Application was filed on 5 October 2016. It was due to be filed by 21 October 2014: s.477(1) and s.477(3)(b) Migration Act. The Application was therefore filed nearly two years late and the Applicant therefore requires an extension of time to commence this proceeding.
The Applicant seeks an extension of time pursuant to s.477(2) of the Migration Act. Section 477(2) provides:
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 administration of justice to make the order.
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) requires that if an extension of time is sought the application must be supported by an affidavit including:
(2)…
…
(c)[…]– the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
In considering whether an extension of time should be granted in the context of the review of administrative decisions, it is well settled that an extension of time is not to be granted unless it is proper to do so[13]. The legislative time limits are not to be ignored[14]. The relevant considerations include:
a)An acceptable explanation for the delay[15].
b)Any prejudice to the respondent in defending the proceedings caused by the delay is a material factor mitigating against granting an extension[16], however the mere absence of prejudice to the respondent is not enough to justify the grant of an extension[17].
c)The length of the delay[18].
d)The merits of the substantive application are also properly to be taken into account in considering whether an extension of time should be granted[19].
[13] Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305, 310.
[14] Ralkon v Aboriginal Development Commission (1982) 43 ALR 535, 550.
[15] Duff v Freijah (1982) 43 ALR 479, 485.
[16] Doyle v Chief of General Staff (1982) 42 ALR 283, 287.
[17] Douglas v Allen (1984) 1 FCR 287; Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305, 311.
[18] SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86, at [6].
[19] Lucic v Nolan (1982) 45 ALR 411; Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305, 311; SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109, 16 (Farrell J); MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
Length of the Delay
In this matter the delay in filing the Application is some two years. The Minister submitted that the length of the delay was significant.
Explanation for Delay
The Extension of Time Application Grounds provide two explanations for the delay as follows:
(1)I was suffering from sever (sic) financial hardship and hence I was left with no option but to seek ministerial intervention against the unfair refusal of my visa.
(2)Now I can afford judicial review fees so hence lodging judicial review with great (sic)
The Applicant’s First Affidavit does not provide any explanation for the delay. The Applicant simply deposed to the truth of the information and annexed the Tribunal Decision to the Affidavit. The Applicant’s Second Affidavit also does not provide any explanation for the delay. The Applicant states:
Medical records, from hospital. Reports from my GP and private doctors are attached. Please have a look.
The Applicant’s Second Affidavit annexed medical reports from the Applicant’s general practitioner, an occupational physician and doctors from the Department of Renal Medicine at Alfred Health.
At the hearing the Applicant said in relation to the Extension of Time Application Grounds:
Applicant[…] Well, at that time I was - I had heart surgery done. I wasn’t working, so someone told me I can apply for a ministerial intervention rather than Federal Circuit Court, so I applied for ministerial intervention.
Her Honour And did you do that?
Applicant I did.
Her Honour And what was the result of that?
Applicant It was declined because of my medical condition, because I’m suffering from chronic renal failure[20].
[20] Transcript T 2:33-44.
It was submitted on behalf of the Minister that no acceptable explanation for the delay has been provided by the Applicant for the whole of the period of delay.
The Minister submitted that the Applicant had failed to provide any evidence that he faced financial hardship at the time of the Tribunal Decision. It was also contended that the Applicant had not explained why his claimed lack of funds had prevented him from at least filing an application for review, even if he could not afford legal advice. It was further submitted that the Applicant’s subsequent conduct in later applying for judicial review without legal representation, undermined his claim that he was prevented from filing an application because he could not afford legal advice.
The Minister also submitted that to the extent that the Applicant relied upon his application for Ministerial intervention as being an independent explanation for his delay, the Courts have made it clear on numerous occasions that this was not a sufficient explanation for failing to comply with judicial review time frames. The Minister relied upon the Full Federal Court decision in Vu v Minister for Immigration and Citizenship and Another (2008) 101 ALR 211[21] , where Jessup J said:
I do not think that the applicant’s approach to the minister under s 351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “plan B” to which resort was had once the approach under s 351 proved unsuccessful.[22]
[21] Vu v Minister for Immigration and Citizenship and Another (2008) 101 ALR 211, [28]-[30]; (Giles J agreeing) [1]; (Besanko J agreeing) [3].
[22] Ibid., [29].
It was submitted by the Minister that the Applicant’s explanation for the delay demonstrated that the Applicant was aware that he could apply for judicial review but chose not to do so. The Minister relied on previous decisions of this Court where in similar circumstances, it was found that an election to pursue Ministerial intervention exclusively was an unsatisfactory reason for the grant of an extension of time: SZQLD v Minister for Immigration and Anor[23]; SZTVW v Minister for Immigration and Anor (No.2)[24].
[23] [2011] FMCA 784, at [20].
[24] [2014] FCCA 368, at [6].
I agree with the submissions made by the Minister. In my view the delay in this matter was significant and I am not persuaded that the Applicant has provided an adequate explanation for his delay in bringing these proceedings.
Prejudice to First Respondent
The Minister does not claim any prejudice. However, the mere absence of prejudice is not enough to justify the grant of an extension of time[25]. There is a clear public interest in the prompt disposition of allegations of jurisdictional error against administrative decision makers[26].
[25] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305, 311 (Wilcox J).
[26] MZABO v Minister for Immigration and Border Protection [2016] FCA 980, at [5] (Jessup J).
Merits of Substantive Application
The Grounds of Application are:
1.My medical was not performed correctly and the sunshine hospital (sic) conducted the wrong tests leading to incorrect medical outcome which further led to my visa refusal.
2. I am absolutely fit and fine and happy to go for any medical.
Ground 1
By the first ground the Applicant essentially disputes the Tribunal’s reliance upon the Third MOC Opinion.
The Minister submitted that the Applicant had not provided any particulars about the tests he alleged were not performed correctly at the Sunshine Hospital or how the Third MOC Opinion was incorrect. There were two other MOC opinions before the Tribunal, these being the First MOC Opinion and the Second MOC Opinion. Each of these opinions also concluded that the Applicant did not meet PIC 4005.
The Tribunal considered the Third MOC Opinion to be a valid opinion for the purpose of PIC 4005[27]. The Tribunal was bound by reg. 2.25A(3) to take the Third MOC Opinion to be correct, if it was valid[28].
[27] CB 282, at [23] and Tribunal Decision, Annexure A.
[28] Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115, at [66].
The Minister submitted that the Third MOC Opinion correctly considered the likely requirement for health care or community services by reference to a hypothetical person with the same level of condition as the applicant. The Minister relied upon Robinson v Minister for Immigration and Multicultural and Indigenous Affairs[29] where Siopis J said:
A proper construction of public interest criterion 4005 of the Regulations, requires the MOC to ascertain the form or level of condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. It is not the case that the MOC is to proceed to make the assessment at a higher level of generality by reference to a generic form of the condition[30].
[29] (2005) 148 FCR 182.
[30] Ibid., at [43].
The Minister also submitted that all of the medical evidence filed by the Applicant and the other available medical evidence in the review was before the MOC when they reached their opinion[31]. The MOC was not required to form an opinion that was consistent with the Applicant’s medical evidence and was not required to give reasons rejecting that other evidence[32].
[31] CB 281, at [16].
[32] Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014, at [33] and [36].
It was also submitted on behalf of the Minister that the Third MOC Opinion was current at the time the Tribunal made its decision. The Minister relied on Applicant Y v Minister for Immigration and Citizenship[33]. In that case Tamberlin J said:
[19] Generally, the Tribunal will reserve its decision at the end of the hearing and should be entitled to rely on an opinion which is current and reliable at the date of the hearing, and should not be required to seek or consider a fresh opinion bearing the same date as that on which it eventually hands down its decision.
[33] [2008] FCA 367.
[20]However, in addressing this question, the Tribunal cannot generally disregard a substantial lapse in time between the issue of an MOC’s report and the making of its decision […]
[…]
[22]… Consideration of an outdated report could be unacceptable because the Tribunal, pursuant to its obligation under reg. 2.25A(3), will act on a report which cannot be said to be a full and proper assessment of the applicant’s health or the cost of treatment at the time of the Tribunal’s decision was made. In other words, the Tribunal, by consulting an out of date report, risks taking into account irrelevant considerations, namely, information and medical opinions which no longer apply to an applicant[34].
[34] Ibid., at [19]-[22].
In this case the Tribunal hearing took place on 1 September 2014 and the Tribunal relied upon the Third MOC Opinion. This opinion had been provided on 26 June 2014 some eight weeks prior to the hearing.
Ground 2
By the second ground the Applicant contends that he is “fit and fine” and “happy to go” for further medical tests. In support of this contention the Applicant filed the Applicant’s Second Affidavit, annexing four medical reports. These reports are from:
a) Mr Trung Quach, Nephrologist, Department of Renal Medicine, The Alfred, dated 29 January 2014 (Quach Report).
b) Dr Khai Yang Ooi, Renal Registrar, Department of Renal Medicine, Alfred Health, dated 30 January 2014.
c) Dr Martha Baz, Occupational Physician, dated 21 March 2017.
d) Dr Anoop Thayavalappil-Kyparath, general practitioner, dated 22 March 2017.
Of these reports the Quach Report was in evidence before the Tribunal[35] and was referred the in the Third MOC Opinion[36]. The reports referred to in sub-paragraphs 52(b) to (d) were not in evidence before the Tribunal and are new evidence.
[35] CB 281, at [20].
[36] Tribunal Decision, Annexure A.
The Minister submitted that the Applicant was in effect inviting the Court to substitute its own decision for that of the Tribunal. It was submitted that it was not open to the Applicant to request that the Court admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. The Minister relied upon MZXHY v Minister for Immigration and Citizenship[37] where Nicholson J said:
It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 determined the question of ‘… whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘… are only on questions of law’. His Honour further held at 382 that the Court has no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework[38].
[37] [2007] FCA 622.
[38] Ibid., at [8].
The Minister also relied upon the recent decision of the Full Court of the Federal Court in Gupta v Minister for Immigration and Border Protection[39] where Gilmour and Mortimer JJ (Logan J agreeing) said:
It is impermissible for judicial review of a decision, which the appellant seeks before this Court, to enter a review of the merits of that decision: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 per Gleeson CJ and Gummow J[40].
[39] [2017] FCAFC 172.
[40] Ibid., at [62].
In determining if it is necessary in the administration of justice to make an order extending time, the merits of the application are to be taken into account. In MZABP v Minister for Immigration and Border Protection[41] (MZABP) Mortimer J enunciated the approach to be adopted by the Court when considering the merits of a substantive application for which an extension of time is sought. This approach was approved by the Full Court in MZABP v Minister for Immigration and Border Protection[42]. In MZABP her Honour said:
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 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.[43]
[41] (2015) 242 FCR 585, [58]-[63].
[42] (2016) 152 ALD 478, [38].
[43] MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, [63].
Her Honour continued with:
In my opinion, unless the grounds are hopeless in the sense I have discussed above so that simply on an impressionistic reading and consideration without full argument a judge can be confident they must fail, the better approach if the court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time would be to do so and then to consider and determine the grounds of review with a full consideration of them. There is no reason that cannot be still be done in one hearing and in my opinion it reflects a more appropriate exercise of the supervisory jurisdiction of the Federal Circuit Court.[44]
[44] Ibid., [66].
The Minister submitted that each of the Grounds of Application were destined to fail and that the application for an extension of time should be refused.
Consideration
In this matter the delay of two years was significant and I have found that the Applicant has not provided an adequate explanation for the delay in bringing these proceedings.
In relation to prejudice to the Minister, as set out above, the mere absence of prejudice is not enough to justify the grant of an extension of time[45]. There is a clear public interest in the prompt disposition of allegations of jurisdictional error against decision makers[46].
[45] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305, 311 (Wilcox J).
[46] MZABO v Minister for Immigration and Border Protection [2016] FCA 980, at [5] (Jessup J).
In turning to consider the merits of the Grounds of Application, I have taken into account the approach to be adopted by the Court as enunciated by Mortimer J in MZABP.
In relation to the first ground, I have considered the Application, the Applicant’s First Affidavit, the Applicant’s Second Affidavit and the Applicant’s submissions at the hearing. I have also considered the Ministers submissions and the authorities relied upon by the Minister. On “an impressionistic reading and consideration” I have formed the view that this ground is not “reasonably arguable” or alternatively expressed “hopeless” in the sense that “it must fail”[47].
[47] MZABP, at [66].
In relation to the second ground, after considering the material referred to in the preceding paragraph, I have again on “an impressionistic reading and consideration” formed the view that this ground is also not “reasonably arguable” or alternatively expressed “hopeless” in the sense that “it must fail”[48].
[48] Loc. cit.
Conclusion
Therefore taking into account the above matters I am not satisfied pursuant to s.477(2)(b) of the Act that it is necessary in the administration of justice to make the order extending the time under s.477(1) of the Act.
I therefore refuse the application for an extension of time and order that the Applicant pay the Minister’s costs.
I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Associate:
Date: 13 February 2019
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