SZSLU v Minister for Immigration
[2013] FCCA 1622
•25 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSLU v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1622 |
| Catchwords: MIGRATION – Application filed out of time seeking review of Refugee Review Tribunal decision – application made for extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) – consideration of delay – consideration of merits of substantive application – not in the interest of the administration of justice to extend time – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.91X, 417, 477(1), 477(2) Federal Circuit Court Rules2001 (Cth), r.44.12 |
| SZEMJ v Minister for Immigration & Anor [2007] FMCA 913 SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 |
| Applicant: | SZSLU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3135 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 7 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2013 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Fijian interpreter |
| Solicitor for the First Respondent: | Ms A. Carr of DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting Notice of appearance |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The application seeking an extension of time is refused.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application fixed in the sum of $3,326.00.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSLU.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3135 of 2012
| SZSLU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Judiciary Act 1903 and Migration Act 1958 (Cth) (the “Migration Act”) seeking an extension of time to apply for relief in the form of constitutional writs against a decision of the second respondent in these proceedings, the Refugee Review Tribunal (the “Tribunal”), RRT Case Number 1105927, dated 22 September 2011. In that decision the Tribunal affirmed the decision of a delegate of the first respondent in these proceedings, the Minister for Immigration and Border Protection (the “Minister”) not to grant the applicant a Protection (Class XA) visa.
Pursuant to s.477(1) of the Migration Act, an application for judicial review of a decision of the Tribunal must to be filed within 35 days of the date of the Tribunal’s decision. The Application before this Court was filed on 11 December 2012, approximately one year and two months out of time. The applicant has made an application in writing for an order extending time, pursuant to s.477(2) of the Migration Act. Section 477(2) confers power on this Court to extend time if it considers it to be appropriate. The Minister opposes the grant of an extension of time on the basis that it is not necessary in the interests of the administration of justice for an extension of time to be granted.
The solicitors for the first respondent, the Minister, filed a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”. The applicant filed three affidavits in the proceedings, the first being an affidavit sworn by himself on 25 March 2013 and filed the same day (the “Applicant’s First Affidavit”), the second being an affidavit sworn by himself on 24 April 2013 and filed the same day (the “Applicant’s Second Affidavit”) and the third affidavit sworn by himself on 24 April 2013 and filed the same day (the “Applicant’s Third Affidavit”). The applicant sought at the hearing to rely on all the affidavits that he filed. It should be noted, however, the attachment to the Applicant’s Third Affidavit appears to be in the form of submissions and will be treated as such. The applicant also sought to tender Annexure “A” of the Applicant’s First Affidavit at the hearing.
At the First Court Date directions hearing the applicant sought to participate in the NSW RRT Legal Advice Scheme. A referral was made and written advice was provided after the applicant’s conference with a panel advisor. The proceedings were adjourned to allow this advice to be obtained. The application was listed for a show cause hearing on 7 May 2013 under the provisions of Rule 44.12 of the Federal Circuit Court Rules2001 (Cth). The applicant was granted leave to file and serve a short written outline of submissions and list of authorities thirteen (13) days before the date of the show cause hearing. The applicant elected not to file an outline of submissions, but instead tendered hand-written submissions at the hearing.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the solicitors appearing for the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.
The applicant is a male citizen of Fiji. He first arrived in Australia on 12 November 2010, returned to Fiji on 4 January 2011 and arrived back in Australia on 17 February 2011 (CB 57).
The applicant applied for a Protection (Class XA) visa on 24 February 2011 (CB 1-25). The application was refused by a delegate of the Minister on 24 May 2011 (CB 57-62), and the applicant sought review of that decision in the Tribunal’.
After hearing the applicant’s claims, the Tribunal made its decision on 22 September 2011 affirming the decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa (CB 101-126).
Applicant’s Protection Claims
The applicant claimed to fear harm in Fiji from the Military Regime due to his support of the SDL (Soqosoqo Duavata ni Lewenivanua) political party, his religion (Methodism) and as a result of a problem encountered with the military during his employment. The applicant claimed that he had been working as a marine officer in Fiji, that his employment was terminated by the Military Regime in 2009 due to a dispute with a member of the Regime, and that he was accused of being anti-governmental and anti-military.
The applicant claimed that the regime had since prevented him from gaining employment and, consequently, earning a livelihood. The applicant claimed before the Tribunal that his finger had been amputated in 2010 and he considered this was due to poor initial treatment by his doctor, who had links to the military.
The applicant submitted a letter from the leader of the SDL party which purported to corroborate his claims generally, a letter of employment in support of his claim to have worked as a marine officer, and a newspaper article in support of his claim to have been fired by the Military Regime.
The Tribunal’s Decision
The Tribunal in its Decision Record accepted that the applicant had his employment terminated as well as his account of events leading up to his employment being terminated. However, the Tribunal did not accept that the termination of the applicant’s employment was for any of the five Convention reasons. Rather, the Tribunal considered that the essential and significant reason for the applicant being fired was that he did not comply with the requests of influential people and they were teaching him a lesson for not following the orders of the Military (CB 121 at [67]-[69]).
The Tribunal did not accept that the applicant had been of any interest to the Military or the interim Government since his dismissal (CB 121-123 at [70] and [75]). Although the Tribunal accepted that the applicant may have had difficulty finding work, it did not accept that this was because of any interference by the military or because of any Convention reason. The Tribunal found that any harm which the applicant may face as an unemployed person was due only to the economic conditions in Fiji and would not have any discriminatory element (CB 121-122 at [71]).
The Tribunal accepted that the applicant’s finger was amputated in 2010, but did not accept that this was orchestrated by the military (CB 122-123 at [73]-[74]). The Tribunal considered that this claim was purely speculative and that the amputation of the applicant’s finger was due to the error of the doctor and not connected to the military.
The Tribunal accepted that the applicant was a member of the SDL and was involved in politics at a very low level. On the basis of country information the Tribunal found that there was not a real chance that the applicant would be persecuted as the result of his political opinion (CB 123 at [79]). Similarly, the Tribunal accepted that the applicant was a member of the Methodist Church, but, on the basis of country information, did not accept that this put him at risk of persecution (CB 124 at [80]).
Current Proceedings
The applicant’s substantive application to the Court was made 31 December 2012. The order sought on the substantive application was:
A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, or by reason of the ground/s of this application.
The grounds of the applicant’s Application were:
1. My dismissal from my employment as a civil servant in Fiji by the military Govt. as described on paragraph 67 (page 21) of the RRT report for being disobedient and was being taught a lesson by the military is incorrect and totally erroneous.
2. That the actual reason and cause for my dismissal is December 2008 as stated in my reports was neither acknowledged or accepted by the RRT report.
3. My brother’s report/evidence on paragraph 48 of the RRT report is also totally incorrect and may have influenced the RRT decision as raised in 1.
4. Based on the above the Tribunal may have erred in the report on paragraph 69 with reference to convention reasons, hence a jurisdictional error duly exists.
The applicant requires, and has applied for, an extension of time of approximately 1 year and 2 months to seek judicial review of the Tribunal’s decision. In the Application, the grounds for an extension of time are as follows:
1. Did not have any knowledge or idea for the legal procedural requirement.
2. Legal Aid sought denied (not accepted).
3. Did not know the 35 days time frame.
The Minister opposes the application for an extension of time on the basis that it is not necessary in the interests of the administration of justice that an extension of time be granted.
Applicant’s Submissions
The applicant at the hearing presented to the Court hand written submissions, approximately two pages in length. The applicant chose to rely on these written submissions and they can be summarised as follows:
a)The applicant claimed that he was unaware of the legal proceedings for judicial review after the receipt of his unsuccessful Tribunal decision;
b)The applicant claims that he did not receive adequate direction or advice while awaiting the Tribunal’s decision from Legal Aid; and
c)The applicant claims that he sought legal assistance a second time and believes that he may have been misled on two important issues that could have avoided the application for an extension of time, being:
i)The applicant claimed that on or about 14 October 2011 he had sought the assistance of “Diverse Immigration Australia”, who drafted and submitted an application for ministerial intervention; and
ii)The applicant claims that, despite the fact that the time limit for judicial review had not expired for him at that time, the advice to seek judicial review was never raised by this migration agent.
Minister’s Submissions
Ms Carr, appearing on behalf of the Minister, contends that the question for the Court in determining an application to extend time to apply for judicial review is whether such an extension is necessary in the interests of the administration of justice, pursuant to s.477(2) of the Migration Act. In considering the question, the Minister argues that the following factors are relevant:
a)The length of the delay and the reason for the delay, including whether there is an acceptable explanation for the delay;
b)The merits of the substantive explanation; and
c)Any prejudice to the respondents.
To support this contention Ms Carr refers the Court to the decisions of Barker J SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [14] and Scarlett FM (as he then was) in SZNOR v Minister for Immigration & Anor [2009] FMCA 639 at [14]-[16].
The Minister notes that the Court should also look at several other factors, including;
a)The impact on the applicant;
b)The interests of the public at large; and
c)The exercise of the Court’s discretion (or any other discretionary factors).
In support of this assertion, Ms Carr referred the Court to the authorities of SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 per Nicholls FM (as he then was) at [44] and SZNZU v Minister for Immigration and Citizenship [2010] FMCA 197, in which Barnes FM (as she then was) at [51]-[55] considered the notion of “in the interests of the administration of justice” and held that it was necessary to have regard to all the circumstances, but that the factors at SZMFJ (supra) were a “good starting point”. Smith FM held in SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11] that none of the relevant consideration should be elevated to being necessary consideration in all cases, including the two ‘critical’ considerations – whether there is a reasonable explanation for the delay and whether there is a material argument on the merits. Smith FM observed that the Court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in s.477(2)(b) of the Migration Act.
It is argued by Ms Carr that there is no prejudice to the respondents in the present matter. Accordingly, it is submitted that the two relevant factors the Court should give consideration to in deciding whether to grant an extension of time in the present case are the delay and the explanation for the delay, and the merits of the substantive application.
Merits of the substantive application
In respect of the substantive Application, the Minister submits it pleads four grounds which take issue with the Tribunal’s factual conclusions. The Application does not point to any jurisdictional error on the part of the Tribunal. The Application’s pleaded grounds take issue with the Tribunal’s conclusions at [67] (CB 121) that the applicant was dismissed from his employment to teach him a lesson for not complying with a military order and suggest that the actual reason for the applicant’s dismissal (being events in 2008) was not considered. The Minister submits that this appears to misunderstand the Tribunal’s findings. The Tribunal accepted the applicant’s account of events in December 2008 which led to his dismissal and noted, correctly, on the face of the Tribunal’s summary of the hearing, that the applicant had said that he did not know the reason for his dismissal. The Tribunal therefore did consider the applicant’s explanation for why he was fired. The Minister submits that the Tribunal’s conclusion as to why the applicant was dismissed was open to it on the material before it.
It is accordingly submitted that the substantive application seeks impermissible merits review.
The Minister brings to the Court’s attention that the applicant has also purported to raise grounds of review in the Applicant’s First Affidavit. However, the Applicant’s First Affidavit repeats his claims to fear harm in Fiji and does not raise any grounds of jurisdictional error on the part of the Tribunal. Accordingly, the issues raised in the Applicant’s First Affidavit seek impermissible merits review.
The Minister submits that the applicant failed to raise an arguable case of judicial review in respect of the Tribunal’s decision, and the applicant’s substantive Application lacks any merit. The Minister submits that in the circumstances, the grant of an extension of time would be futile. Therefore, even if the Court considers that the applicant has adequately explained the delay in seeking judicial review, the application for an extension of time should nonetheless be dismissed on the basis that the substantive Application lacks any merit.
Length of delay and explanation for the delay
The Tribunal’s decision is dated 22 September 2011 and the Minister argues it is clear the applicant knew about the decision by at least 1 November 2011, as this was the date on which his migration agent made a request for ministerial intervention under s.417 of the Migration Act (CB 127-131). The delay in the present case is therefore substantial, being over a year.
The applicant’s explanation for the delay (as stated in his Application and the Applicant’s First Affidavit) is that he did not know about the 35 day time limit to file an application in this Court and was refused legal aid. The Minister contends that these are not adequate explanations for the delay. It is the responsibility of the applicant to ascertain his review rights and any applicable time limits: SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33] per Cowdroy J.
Moreover, it is apparent from the ministerial intervention request that the applicant had the assistance of a migration agent from at least 1 November 2011. If he wished to seek judicial review, he should have obtained advice about this from his agent. The Minister argues the Court should infer that the applicant chose to pursue the alternate route of seeking ministerial intervention.
To the extent that the applicant suggests in the Applicant’s Second Affidavit that the delay was the result of his seeking ministerial intervention, the Minister contends that this is not an adequate explanation for the delay: SZOCH v Minister for Immigration & Anor [2010] FMCA 300 per Nicholls FM (as he then was) at [38]-[41]:
38. While the applicant can be said to have acted in a timely fashion after that time, the delay in coming to the Court is not satisfactorily explained by his seeking the Minister’s intervention. (See Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 at[9], Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684 at [9], Re Ruddock; Ex Parte LX [2003] FCA 561 at [42], Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 at [12], Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1331 at [18]- [20] (and VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 186), Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 at [14], M211 of 2003 v Refugee Review Tribunal & Anor [2004] FCAFC 293 at [22]- [24], S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283, SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457, Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [6].)
39. (See contra: NAGG of 2002 v Minister for Immigration & Anor [2007] FMCA 84, SZEEF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 661 (relying on Gararth v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 316) and SZHEH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1301 at [36]- [41].)
40. But the applicant does not rely on this request to the Minister to explain the delay. The applicant puts forward three reasons to explain the delay.
41. First, the applicant claimed in his application to the Court that his legal adviser did not tell him of the option to apply to the Court and that he only came to know of this on 8 January 2010. The application is silent as to how this came about.
Statutory Framework
Section 477 of the Migration Act states:
Time limits on applications to the Federal Circuit Court
(1) An application to the Federal CircuitCourt for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(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.
(3) In this section:
"date of the migration decision"means:
(a) in the case of a migrationdecision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or
(b) in the case of a written migrationdecision made by the Migration Review Tribunal or the Refugee ReviewTribunal--the date of the written statement under subsection 368(1) or 430(1); or
(c) in the case of an oral migrationdecision made by the Migration Review Tribunal or the Refugee ReviewTribunal--the date of the oral decision; or
(d) in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of dateof the migration decisionin subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migrationdecision.
Consideration
The applicant is seeking an order granting an extension of time to file his Application pursuant to s.477(2) of the Migration Act. I am satisfied that the applicant has made an application for this order in writing to this Court, and has specified why he considers it necessary that such an order be made. The applicant has also filed the Applicant’s Second Affidavit in support of his application for an extension of time. As such, the application for an extension of time satisfies the requirements of s.477(2)(a) of the Migration Act. The issue that must be considered is whether the Court is satisfied that it is necessary in the interests of the administration of justice that an order be made extending the time limit (s.477(2)(b)).
The applicant at the hearing essentially reiterated his written submissions outlined at [20] above.
The actual period of the delay in applying for judicial review is approximately one year and two months. The Tribunal sent notification of its decision to the applicant by a letter dated 23 September 2011. The 35 day period in which an application to this Court can be filed as stated in s.477(1) of the Migration Act commences on the date of the decision and is not dependent on any notification to the application, whether actual or constructive.
The applicant, however, can be taken to have known of the decision at least as at 1 November 2011, as this was the date on which his migration agent made a request for ministerial intervention under s.417 of the Migration Act (CB 127-131). The applicant was subsequently advised by a letter dated 5 November 2012 that his ministerial intervention request was unsuccessful.
The applicant’s delay in seeking judicial review has not been satisfactorily explained by his election to seek ministerial intervention. The applicant submits that he was unaware of the judicial review avenue available to him and that he was not advised of it on two occasions. The Applicant’s Second Affidavit attaches three annexures. Annexure “A” is a contractual agreement between Diverse Immigration Australia and the applicant, Annexure “B” is the applicant’s statutory declaration that accompanied his ministerial Intervention application and Annexure “C” is a separation letter from Diverse Immigration Australia.
It was confirmed by the applicant that Diverse Immigration Australia had made two applications seeking ministerial Intervention on his behalf. The applicant stated that before he went to Diverse Immigration Australia and before he had received a copy of the Tribunal decision he went to Legal Aid, but was not advised to seek judicial review. The applicant confirmed in Court, in response to a direct question from the bench, that he had not received the Tribunal’s Decision Record before he went to Legal Aid. Although invited, the applicant did not provide an explanation in respect of the timing of his approach to Legal Aid. The applicant also claimed that advice to seek judicial review was not offered to him when he entered into a contract with Diverse Immigration Australia. Further, the applicant submitted that the Tribunal’s Decision Record was not considered by the migration agent or as a part of his ministerial intervention application.
Despite the above claims, the onus remains with the applicant to make proper enquiries or to take reasonable steps to ascertain whether he could have taken action beyond the Tribunal and as to any applicable time limits: SZOCH (supra) at [43] and SZLIH v Minister for Immigration and Citizenship (supra) per Cowdroy J at [33], where his Honour stated:
33. It is not acceptable that the applicants failed to make proper inquiries to determine when their appeal was required to be lodged...
Nicholls FM (as he then was) in SZEMJ v Minister for Immigration & Anor [2007] FMCA 913 at [48]-[67] gives a detailed account of unwarrantable or unexplained delay in seeking judicial review. Of relevance is [57(3)], where his Honour stated:
In Re Ruddock; Ex Parte LX [2003] FCA 561 at [42], Heerey J. held that, the language of s.417 of the Act, that the power may only be exercised personally by the Minister, suggested that it was reserved for rare cases and that it would be, in the usual course, unwise for the applicant to rely on the success of such a request, when other avenues of possible relief, for example, an application to a Court, were available as of right.
The applicant’s submission is that he was advised by his migration agent to pursue ministerial intervention and that the migration agent failed to advise him of the time limits applicable to the commencement of judicial review proceedings. Cameron FM (as he then was) in SZOLM v Minister for Immigration & Anor [2011] FMCA 305 considered a claim where the applicant had similar grounds to those of the applicant in the current proceedings. At [43]-[46] his Honour stated:
43. Plainly, the delay between the handing down of the Tribunal’s decision on 6 January 2009 and the commencement of these proceedings on 31 May 2010 is a considerable one in the context of the time limits imposed by s.477 both in January 2009 and from 15 March 2009. The issue presently presenting for determination is whether the applicant’s explanation for that delay is a reasonable one.
44. The applicant’s uncontested evidence is, and I find, that his original solicitor and migration agent advised him to pursue ministerial intervention and failed to advise him of the time limits applicable to the commencement of proceedings such as these. The applicant pursued the option of ministerial intervention until, on 16 March 2010, the Minister’s department rejected Ms Hogarth’s further request for intervention whereupon he did seek to file an application in this Court in April 2010. The document was rejected by the Court’s registry because it was defective, a deficiency which reflects on the applicant’s original solicitor and migration agent and not on the applicant. Thereafter, the applicant instructed his current solicitor and, at the end of May 2010, these proceedings were commenced.
45. Once the applicant sought ministerial intervention, progress depended on the responses of the Minister and his department and it can be seen from [22]-[24] above that they took some time to reach their decisions on the requests which were made on the applicant’s behalf. Nevertheless, once that somewhat protracted process was concluded, the applicant acted to initiate these proceedings with what I consider, in the circumstances, to have been adequate despatch.
46. I conclude that the applicant’s decision to pursue ministerial intervention was based on incomplete information and that it was not a fully informed decision. Because the delay in the commencement of these proceedings arose out of a decision which was made without the applicant being in possession of all relevant information, it can be distinguished from a decision where an applicant, knowing that time for the commencement of proceedings has started to run, nevertheless chooses to pursue ministerial intervention instead. In such circumstances, an applicant can be considered to have chosen one course in preference to another but the present applicant did not make a choice of that nature. Overall, the applicant can be seen to have acted promptly on the advice he was given, whether that was to pursue ministerial intervention or to initiate proceedings in this Court and to not have knowingly elected to pursue ministerial intervention over judicial review. In all the circumstances, I am satisfied that he has provided a satisfactory explanation for the delay in commencing the proceedings.
I believe the approach adopted by his Honour Cameron FM (as he then was) in SZOLM (supra) should in part be followed in this matter before the Court to the extent that the applicant may not have been fully informed of the consequences of electing to pursue ministerial intervention without initiating an application for judicial review. The Applicant’s Second Affidavit, which has been read in these proceedings without challenge, attaches at Annexure “A” a “Migration Agent/ Client Agreement” executed by a registered agent and the applicant for the provision of a ministerial intervention application by the agent on the applicant’s behalf. There is nothing before the Court to indicate the circumstances surrounding the preparation of this application or the nature of any advice given. Whether advice was given and ignored, there was a failure to provide appropriate advice or something else occurred is unknown. Whatever did occur, it would be expected that a MARA Registered Agent would be acutely aware that the seeking of ministerial intervention does not have any effect on the strict time limits in which an applicant can seek judicial review of a Tribunal decision. In the absence of such information what occurred between the applicant and his former migration agent in respect of the seeking of ministerial intervention and the failure to make a more prompt application for judicial review remains unclear and the Court must turn its focus to the second element relevant to consideration which is addressed below.
The second element relevant to the consideration of the application for an extension of time is whether the grounds of the substantive application have any merit to support the seeking of an extension of time. It is important to consider whether the applicant’s assertion of jurisdictional error on the part of the Tribunal has sufficient merit to weigh in the applicant’s favour in the exercise of the Court’s discretion.
In circumstances where a self-represented litigant with limited knowledge of the legal system is attempting to argue his or her case, a greater weight is placed on whether there is an acceptable explanation for the delay in seeking judicial review. However, as there is an absence of evidence on this issue before the Court I am guided by the reasoning SZNZU (supra) at [51]-[55] where her Honour Barnes FM (as she then was) considered the notion of “in the interest of the administration of justice” as follows:
51. There is no dispute that the first limb of s.477(2) has been met in this case by the written application for an extension of time in the application and amended application. Hence it is necessary to determine whether I am satisfied that it is “necessary in the interests of the administration of justice” to extend the time for making the application to review the decision of the Tribunal.
52. The notion “in the interests of the administration of justice” has been considered in many contexts (see the discussion in Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28] per Lucev FM). Relevantly, in SZMFJ v Minister for Immigration & Anor [2009] FMCA 771, Nicholls FM (at [44]) identified a number of circumstances relevant to the second limb of s.477(2), being:
1. The extent of the delay and the reason for the delay.
2. Whether there is any merit in the application.
3. Whether there is any prejudice to the respondents.
4. The impact on the applicant.
5. The interests of the public at large.
6. The Court’s discretion itself.
53. In Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299; [2007] FCA 591, Stone J suggested (at [35]) that the concept “...in the interests of the administration of justice” in s.477(2)(b) “...would involve consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success.” (Also see Metera v Administrative Appeals Tribunal and Another (2008) 105 ALD 18; [2008] FCA 1627 at [22]).
54. Similarly in SZNZI v Minister for Immigration & Anor [2010] FMCA 57 Smith FM stated (at [11]):
The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two ‘critical’ considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration & Anor [2009] FMCA 1161 at [40] – [41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two ‘critical’ considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weight all of the relevant circumstances together by reference to the statutory criterion provided in s.477(2)(b), quoted above.
55. I am of the view that in determining whether it is in the interests of the administration of justice to extend the time for an application, it is necessary to have regard to all of the relevant circumstances but the factors referred to in SZMFJ provide a convenient starting point.
These issues are further explained in the Minister’s submissions set out at [21]-[23] above.
The grounds of review pleaded in the Application are set out at [17] above. Although the grounds of review are stated as four separate paragraphs, none identify any jurisdictional error and the four numbered grounds can, in effect, be read together as a single paragraph. The applicant disputes the finding as stated at [67] of the Tribunal’s Decision Record, however, the detailed account of the written submissions received by the Tribunal on 9 August 2011 and hearing conducted on 1 September 2011 indicate that the Tribunal addressed, in detail, the nature of the applicant’s claims. During the hearing, the Tribunal put to the applicant a brief summary of the nature of the claim being made (CB 111 at [34]). These suggested reasons were not denied or challenged by the applicant. Rather, the applicant took the approach that he was unaware of the circumstances of his dismissal because it was not specifically stated in writing. This issue was addressed in the Tribunal’s Decision Record under the heading Findings and Reasons at [67], and the applicant claims in the Application before this Court in the grounds of review that this finding is incorrect and totally erroneous.
The second point raised in the applicant’s grounds of review was that the actual reason or cause for the applicant’s dismissal as set out in his report was neither acknowledged nor accepted. This claim is inconsistent with a number of replies given by the applicant in his evidence, particularly at [34] of the Decision Record, where the Tribunal records the applicant’s response to a question about his failure to comply with a request as follows:
34. …The applicant stated how could he comply with their wishes when nothing was written in black and white; he just sent his bodyguard and even he did not tell him the real reason for the trip. If he had known the reason for the trip, the ship would have been loaded the week before and if he was told who was going to provide funds for the fuel and other requirements, he would have allowed the ship to leave. He had no idea what was happening.
(CB 111 at [34])
The next issue challenged by the applicant concerned the evidence given by his brother which is recorded at [48] of the Tribunal’s Decision Record. I note that the “Response to Hearing Invitation” (CB 94-95) indicated that the applicant requested the Tribunal to take oral evidence at the hearing from his brother. A statement made by the applicant’s brother dated 20 July 2011 was provided to the Tribunal prior to the hearing (CB 90). The contents of that statement were reproduced at [48] of the Decision Record, with the balance presumably given orally by the applicant’s brother during the hearing. There is no comment in the Decision Record to indicate that the applicant raised any objection to the evidence given by his brother, nor has a transcript of the Tribunal hearing been provided to the Court that contains any evidence that the brother’s evidence was objected to or contradicted.
A fair reading of the material contained in the Court Book and, in particular, the Decision Record itself, does not indicate that the Tribunal ignored or overlooked material, nor does it suggest that the Tribunal misinterpreted the material before it. The grounds of review do not identify any jurisdictional error and it is not apparent from reading and considering the material before the Court that an error exists. Consequently, the grounds of review considered together with a fair reading of the material available do not support the granting of an extension of time in order to consider the existence of a claimed error in the Tribunal’s decision. An extension of time should be refused and the applicant ordered to pay the costs of the Minister.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 25 October 2013
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