SZTUQ v Minister for Immigration
[2017] FCCA 3185
•20 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTUQ v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3185 |
| Catchwords: MIGRATION – Application for extension of time under s.477(2) of the Migration Act 1958 (Cth) – where no affidavit evidence relied on to explain substantial delay in commencing proceedings – merits of application – application refused. |
| Legislation: Evidence Act 1995 (Cth), s.91 Migration Act 1958 (Cth), ss.420, 422B, 425, 426A, 477 Federal Circuit Court Rules (Cth), rr.13.03C, 44.05 |
| Cases cited: BTI15 v Minister for Immigration and Border Protection [2016] FCCA 2326 Li vMinister for Immigration & Anor [2011] FMCA 12 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 SZTUQ v Minister for Immigration & Anor [2016] FCCA 2889 SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456; [2016] FCAFC 77 |
| Applicant: | SZTUQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 155 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 10 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Williams (direct access) |
| Counsel for the Respondents: | Ms Francois |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 155 of 2014
| SZTUQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This judgment relates to an application for an extension of time within which to make an application to this court for a remedy to be granted in relation to a migration decision.
The migration decision in question was a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal) dated 11 September 2012 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant filed an application for judicial review of the Tribunal decision on 22 January 2014. Under s.477(1) of the Migration Act 1958 (Cth) (the Act) such an application must be made to the Court within 35 days of the migration decision. The Applicant sought an extension of time under s.477(2) of the Act. The matter was listed for hearing. The Applicant did not appear and the matter was dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules (Cth) (the Rules).
The Applicant filed an application seeking that the orders made in his absence be set aside pursuant to r.16.05 of the Rules (the reinstatement application). I set aside the order dismissing the application for non-appearance (see SZTUQ v Minister for Immigration & Anor [2016] FCCA 2889) and listed the application for an extension of time for hearing.
As calculated by counsel for the Applicant, the application to this court for review of the Tribunal decision was outside the time provided for in s.477(1) of the Act by 1 year, 3 months and 7 days. In his initial application the Applicant sought an extension of time and specified why he considered it necessary in the interests of the administration of justice to extend time under s.477(2) of the Act.
As required by r.44.05 of the Rules, the application was supported by an affidavit (of Mr Issa, the Applicant’s then solicitor) which, as described in my decision in relation to the reinstatement application (see SZTUQ at [2] and [37]), apparently sought to meet the requirement of r.44.05(2)(c) that there be “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”.
However, at the start of the hearing of the application for an extension of time, Mr Williams, counsel for the Applicant, informed the Court that the Applicant did not read any of the affidavits that he had filed and that had been relied on in support of his reinstatement application. This is discussed further below.
Under s.477(2) of the Act the Court may extend the 35 day period as it 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.
Mr Williams submitted, by reference to decisions of the Federal Magistrates Court (see Li vMinister for Immigration & Anor [2011] FMCA 12 at [35]; SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44]; and SZNZU v Minister for Immigration & Anor [2009] FMCA 366 (which, it appears, may be intended to be a reference to [2010] FMCA 197) at [55]) that it was established that the Court may extend time if it was in the interests of justice to do so. This is, of course, made explicit in the wording of s.477(2) of the Act. There is more recent Federal Court authority in relation to the applicable principles. The discretion to extend time under s.477(2) of the Act is expressed in broad terms as discussed in SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389 at [36] per Griffiths J (an appeal from which was dismissed in SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456; [2016] FCAFC 77). However, as his Honour pointed out, although the Act does not provide a list of relevant considerations, “the discretion is not entirely at large” (SZUWX at [36]) because of the existence of the two preconditions in paragraphs (a) and (b) of s.477(2) of the Act (and see SZVMA v Minister for Immigration and Border Protection [2016] FCA 1058 at [31] per Farrell J).
Beyond this, the matters to be taken into account under s.477(2) are not limited by the Act, but “must logically and sensibly relate to the interests of the administration of justice” (SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 at [46]). A number of factors are commonly taken into account in considering the interests of the administration of justice, including, as Foster J explained in SZRIQ at [47]:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
(also see SZSJC v Minster for Immigration and Border Protection [2013] FCCA 1755 and MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [41]).
In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 (referred to in SZUWX) Wigney J referred to the comments of Burchett J in Pozniak v Minister for Health [1986] FCA 66 at [12] (cited with approval by French J in Seiler v Minister for Immigration, Local Government & Ethnic Affairs (1994) 48 FCR 83; [1994] FCA 878 at [26]):
The authorities necessarily deal with an endless variety of situations. As a consequence, they show a constant change of emphasis on particular features. The cases set up signposts to guide the court’s discretion, but they do not erect fences to limit the breadth of the field within which the legislature has chosen to confer discretion upon the Court.
As Griffiths J pointed out in SZUWX at [55], this passage “highlights the breadth of the discretion to extend time”.
In Seiler French J also observed (at [29]) that “[i]t is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account.” However, as Griffiths J pointed out in SZUWX at [55], “French J was not suggesting that leave had to be granted if a case was viewed as arguable – other relevant considerations might tip the balance.”
The discretion is broad and “always depends on the individual circumstances of each case” (see MZZQA v Minister for Immigration and Border Protection [2016] FCA 584 at [8] per Mortimer J).
In support of the application for an extension of time the Applicant sought, and was granted, leave to rely on an amended application which relied on only one ground of review and in which the Applicant gave fresh reasons why he considered that it was necessary in the interests of the administration of justice to extend the time under s.477(2) of the Act, as follows:
1. The Tribunal made a clear error by not granting the applicant an adjournment due to illness.
2. There is no prejudice to the respondents.
3. The impact on the applicant will be significant if he is refouled to Lebanon where he claims he will be harmed, including death, torture, inhuman or degrading treatment on the basis of his homosexuality, without a fair hearing according to law.
Notably, such reasons provide no explanation for the Applicant’s delay in commencing the judicial review proceedings.
Mr Williams contended that, in general, the principles considered in relation to a reinstatement application were very similar to the principles in relation to an extension of time application and that having regard to the conclusion I reached in relation to the reinstatement application it would be consistent to apply the same principles in the extension of time application. No authority was cited in this respect.
However the factors relevant to a reinstatement application are not necessarily identical to those that would be taken into account in the different context of considering an application for an extension of time within which to bring judicial review proceedings.
In this case, both in the original application and in the amended application ultimately relied on by the Applicant, there was an application in writing for time to be extended and an indication of why the Applicant considered that it was necessary in the interests of the administration of justice to make the order. An affidavit was filed in support of the original application, but it is not read. The requirements of s.477(2)(a) were met at the time of the application. Mr Williams suggested that as “[t]echnically speaking” there had been an affidavit filed, it could be said that there was an explanation provided, even though the affidavit of Mr Issa was not read. It was submitted that, contrary to the Minister’s submission, it could not be said that there was no explanation provided. However, there is now no supporting affidavit evidence relied on to explain the delay in commencing these proceedings and “showing” why an extension of time is necessary as required under r.44.05(2)(c) of the Rules. While there may have been compliance with r.44.05(2)(c) at the time of the application, the absence of any affidavit evidence before the Court explaining the delay in commencing these proceedings is relevant, as considered below.
It is appropriate, as part of all the circumstances, to consider the extent of the delay in commencing proceedings and whether there is a reasonable and adequate explanation for such delay, particularly having regard to the existence of the statutory time limit in s.477(1) of the Act.
The Applicant acknowledged that the delay of over 1 year and 3 months beyond the 35 day limit was significant and in the high range of seriousness, but suggested that a satisfactory explanation for the delay had been proffered, as referred to in my judgment in relation to the reinstatement application; or that an explanation could be inferred from the material before the Court; or that even if there was not a satisfactory explanation this should not “displace” the merits of the application.
First, it was contended that there was a satisfactory explanation for the delay as was said to have been detailed in SZTUQ at [2]-[14]. In SZTUQ what was in issue was whether the orders dismissing the application pursuant to r.13.03C(1)(c) following the Applicant’s non-appearance on the scheduled hearing date should be set aside under r.16.05 of the Rules. At [2]-[14] I described events after the judicial review application was filed. At the time the application was filed, the Applicant was represented by Mr Issa, who later withdrew.
In support of his reinstatement application the Applicant had sought to rely not only on an affidavit “sworn/affirmed” (sic) by him on 25 May 2015 (in relation to his non-appearance before the Court) but also on the affidavit of Mr Issa, his former solicitor, filed in support of the judicial review application and addressing the delay in commencing proceedings. The First Respondent objected on the basis that he had not been informed that this affidavit would be relied on in relation to the reinstatement application and indicated that, had this been known, Mr Issa would have been required for cross-examination. In those circumstances I had regard to Mr Issa’s affidavit in the reinstatement proceedings only as indicating the explanation that “would be proffered in support of an application for an extension of time were the matter to be reinstated”.
The Applicant now chooses not to read Mr Issa’s affidavit, or his own affidavit, in support of the application for an extension of time. In my view this forensic choice cannot be circumvented by an attempt to rely on what was said about such evidence in my decision in relation to the reinstatement application (and see s.91 of the Evidence Act 1995 (Cth)). In SZTUQ I considered the arguability of the Applicant’s application for an extension of time on the basis that he would rely on Mr Issa’s evidence to explain the delay (see SZTUQ at [36]-[42]). I did not make any finding as to whether that explanation was in fact satisfactory in relation to all or part of the delay (see SZTUQ at [36]).
As indicated, while the judicial review application was supported by an affidavit of Mr Issa “explaining” the delay, as required by r.44.05(2) of the Rules, it is now not read in support of the application for an extension of time. There is no opportunity for cross-examination of Mr Issa as was previously foreshadowed by the First Respondent. It is not appropriate in assessing the adequacy of any explanation for the delay to have regard to the content of such affidavit.
In oral submissions counsel for the Applicant appeared to retreat from the suggestion that regard should be had to findings in SZTUQ. Mr Williams asked the Court to draw an inference from the court documents that had been filed and from the procedural history that there was a satisfactory explanation for the delay in commencing these proceedings.
In this context the Applicant sought to rely on the fact that in February 2015 (which was over a year after the judicial review application was filed) his former solicitor, who (it is clear from the Courtbook) assisted the Applicant at the departmental and Tribunal stage, had withdrawn from the record and no longer acted for him. This was said to have occurred “without the applicant knowing”. This assertion was made despite the fact that there is no evidence from the Applicant in support of the present application for an extension of time. It is the case that in considering the reinstatement application in SZTUQ, I had regard to the Applicant’s affidavit evidence, including about communications from his former solicitor after he started these proceedings. It was relied on in explanation for his failure to appear on the scheduled hearing date. However the Applicant does not read that affidavit in support of the application for an extension of time. Hence no opportunity for cross-examination arises. It is not appropriate to have regard to the content of such affidavit.
In any event, even if, contrary to my view, it was appropriate to take such evidence into account in support of the application for an extension of time, events after the institution of the judicial review proceedings do not explain the Applicant’s delay in instituting such proceedings.
Counsel for the Applicant also pointed out that after the judicial review application was dismissed for non-appearance, the Applicant had engaged a new legal representative and had sought reinstatement and to rely on a new ground of review. It was submitted that the Applicant should not be denied the opportunity to be heard due to matters which were said to be essentially out of his control. Again, this submission relates to events since the institution of the judicial review proceedings. There is no evidentiary support for any assertion that matters essentially out of the Applicant’s control explain any part of his delay in commencing these proceedings.
Notwithstanding the fact that no affidavit evidence in this respect was read, there was also said to have been a breakdown in communications between the Applicant, his former solicitor and the Department. I am not satisfied that some inference attributing responsibility for the delay in instituting proceedings to persons other than the Applicant should be drawn from this assertion and/or from what occurred after proceedings were instituted, insofar as this seemed to be suggested by the Applicant.
It was also said to be relevant that the Courtbook contains an application for Ministerial intervention under s.417 of the Act made on 22 October 2012 in which Mr Issa (the Applicant’s then representative) stated that he was instructed to lodge such application on behalf of the Applicant. Mr Williams pointed out that this was after the Tribunal decision and submitted that it could be inferred that advice was given to the Applicant to pursue Ministerial intervention. It was submitted that it could be inferred that the Applicant had acted on advice and had chosen the course of Ministerial intervention on that basis and had then adopted a different course after further advice. This was said to provide some explanation for the delay.
I am not persuaded that the material before the Court and the procedural history of this matter is such as to constitute an explanation for the delay in commencing these proceedings, let alone a reasonable or satisfactory explanation. If the Applicant had wanted to assert that he acted on his solicitor’s advice, whether in seeking Ministerial intervention or otherwise, and that this explained the delay in whole or in part, he could have given evidence to that effect. The fact of evidence of an application for Ministerial intervention does not in itself provide a reasonable and adequate explanation for the delay in commencing these proceedings on the evidence before the Court in this particular case (see Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59 per Jessup J at [29]).
Mr Williams also contended that even if the Court was minded to find that there was not a satisfactory explanation for the delay, it was “established” that the length of delay or lack of a satisfactory explanation for delay should not “displace” the merits of the application particularly where there was a clear jurisdictional error. In this sense his submissions proceeded on the basis that it was unnecessary in this case to satisfy the Court that there was a reasonable and adequate explanation for the delay in commencing these proceedings.
In support of this proposition reliance was placed on my remarks in SZTUQ at [41]-[42]. At that stage the Applicant had foreshadowed that in support of the application for an extension of time he would rely on the affidavit from Mr Issa who had represented him at the time he commenced the judicial review proceedings, as well as before the Department and the Tribunal. In considering whether the interests of justice required that the Applicant be given the opportunity to present his case for an extension of time, I referred to the significant delay in commencing the proceedings, to the explanation provided by Mr Issa and to his foreshadowed cross-examination. As I indicated, the prospect of such cross-examination reinforced my view that at the time of determining the reinstatement application it was not appropriate to make a finding as to whether the foreshadowed explanation for the delay in bringing the application for review was satisfactory, whether in relation to part or all of the delay.
In that context I observed in SZTUQ (at [41]): “[t]here may be cases in which, despite the absence of a completely satisfactory explanation for delay in commencing judicial review proceedings, the strength of a proposed ground of review may be such as to warrant an extension of time to bring proceedings in this court, particularly if there is no prejudice to the Respondents and bearing in mind the absence of a right to appeal from a decision to refuse an extension of time” (emphasis added and see Plaintiff S178A/2016 & Ors v Minister for Immigration and Border Protection & Anor [2016] HCATrans 219). However, as I also stated at [41], “[t]hat would be a matter to be determined on the hearing of any application for an extension of time”.
I did not determine whether the explanation for the delay on the evidence before the Court at that time was satisfactory. Rather, as I stated at [42]:
It is somewhat artificial to consider the “arguability” of an explanation for a delay in starting judicial review proceedings in the present context. An explanation in writing (see s.477(2)(a)) for the delay has been proffered. Whether or not that is satisfactory ought not to be determined in advance, particularly as this may depend on how the evidence emerges after cross-examination. There are obvious issues that would have to be addressed in relation to this “explanation” but I also bear in mind that in an appropriate case, notwithstanding the absence of an entirely satisfactory explanation the merits of the case in all of the circumstances may warrant the grant of an extension of time” (emphasis added).
These remarks do not establish that where there is no explanation proffered by an applicant for the delay in commencing judicial review proceedings, other factors may be such as to warrant an extension of time.
The Applicant also relied on observations made by Gageler J in Plaintiff S178A/2016 in considering an application for an extension of time under s.486A(2) of the Act to commence proceedings in the High Court. The application was approximately 11 months outside the 35 day period in s.486A(1) of the Act. Gageler J remarked: “[w]eak as the explanation for the delay is, I would not regard the length of the delay or the failure of the plaintiffs to act when they were aware of the 35-day period as fatal to the application for extension of time were I to regard the ground now advanced as compelling.”
However in Plaintiff S178A some explanation for the delay was provided. Moreover, the observation of Gageler J in Plaintiff S178A relied on by the Applicant was preceded by these remarks:
Given the length of the extension, I would need to be satisfied ordinarily that the plaintiffs’ case was exceptional, taking into account the cogency of the plaintiffs’ arguments and the reasons advanced by the plaintiffs for their delay.
The explanation for the delay which the plaintiffs proffer in the affidavit evidence before me is weak. The plaintiffs sought the advice of a migration agent soon after the decision of the Tribunal. They were told about the 35 day period for challenging the application at that time and they chose not to proceed. What changed the thinking of the plaintiffs was that in June 2016 the first plaintiff met the barrister who now appears for the plaintiffs, who then advised the first plaintiff that she and her family had an arguable case on the grounds now advanced and could file an application for an extension of time. She was not previously aware of those grounds or of the possibility of seeking an extension of time. (emphasis added)
Plaintiff S178A was not a case in which there was no explanation proffered or relied on as an explanation. His Honour concluded that he was unable to regard the grounds advanced as compelling and could not regard them as arguable and did not grant the extension of time.
Nonetheless, as the First Respondent conceded, it is possible that in a particular case there may be circumstances where the interests of the administration of justice warrant an extension of time despite the absence of an explanation for the delay in commencing proceedings. However in my view that would normally require the Court to be persuaded that the Applicant’s case was exceptional (see BTI15 v Minister for Immigration and Border Protection [2016] FCCA 2326 at [9], Vela v Minister for Immigration and Border Protection (2015) 326 ALR 391; [2015] HCA 42, Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 481 cited in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67 at [13]). As Wigney J observed in Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38], “[i]n general the longer the delay, the more persuasive the explanation needs to be”. Indeed in that case Wigney J considered a delay of 18 months to be “excessive” and found (at [38]) that the “absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis” to refuse the application for an extension of time.
Insofar as the Applicant relied on remarks of Judge Driver in SZVMA v Minister for Immigration and Border Protection [2016] FCCA 727 at [18], in that case his Honour had concluded that a “satisfactory” explanation for the delay in commencing proceedings had not been advanced (at [17]). His Honour observed that there would nonetheless be cases where the administration of justice would “compel” the granting of an extension of time and that “[s]uch cases may include circumstances in which there is an obvious or apparent issue of jurisdictional error by the decision maker under review.” However Judge Driver did not grant the extension of time sought.
The applicant in SZVMA sought review under s.39B of the Judiciary Act 1903 (Cth). Farrell J dismissed that application (see SZVMA v Minister for Immigration and Border Protection [2016] FCA 1058). Relevantly, her Honour considered the appellant’s contention that if the merit of an application was “arguable”, then this court would be compelled to grant an extension of time, whatever the length of delay or the reason for it, because otherwise the decision would be legally unreasonable and the judge at first instance would have failed to take into account a relevant consideration (at [38]). It was also submitted that this court should have weighed the length of the delay against the consequence of repatriation of the visa applicant to the home country where harm was said to be feared.
Farrell J acknowledged that in MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 at [13] Mortimer J had stressed the importance of the possible consequences for a protection visa applicant of refoulment to the country against which the claim for protection was made (at [13]), but also noted (at [14]) that “[t]he length of the delay and any explanation for it is also a significant factor but the weight of these factors in any given case is likely to vary considerably”.
Her Honour also referred to the remarks of Griffiths J in SZUWX at [53]-[57] and [77], adopting the conclusions therein in relation to the breadth of the discretion conferred upon this court under s.477(2) and the acknowledgment that it was essentially a matter for this court to “determine and assess what were the relevant considerations to be weighed in determining whether [it] was satisfied that it was necessary in the interests of the administration of justice to extend time”.
Of particular relevance to this case, Griffiths J observed at [77] in SZUWX:
… even if the primary judge’s finding of “arguability” is unqualified, it remained a matter for his Honour to balance that consideration with other matters which he viewed as significant, namely the lack of a sufficient explanation for the delay and the interest of the administration of justice. Whatever standard of “unreasonableness” is applied, it was not unreasonable for the primary judge to conclude that, having regard to other relevant circumstances, the fact that the proposed grounds of review were “arguable” was insufficient of itself to warrant time being extended under s 477(2) of the Act. The applicant’s proposition that, having found that there was an arguable case, it was always in the interests of the administration of justice to make the order is untenable. (emphasis added)
On appeal in SZUWX, the Full Court of the Federal Court upheld the decision of Griffiths J. Bromwich J remarked (at [11]) that no conclusion could be properly reached that “the terms of s 477(2) make any consideration mandatory other than the express test of whether the grant of the extension of time sought is ‘in the interests of the administration of justice’”. His Honour also observed (at [12]) that Parliament has deliberately set a test for granting or refusing an application for an extension of time that “accommodates a myriad of facts and circumstances” by which an application for review came to be lodged outside the 35 day time limit and that his Honour saw “no warrant” for “putting any additional gloss or qualification on the words used by Parliament”.
These views do not support any contention that if there is an arguable case it is always in the interests of the administration of justice to grant an extension of time. As Griffiths J observed in SZUWX at [77], such a proposition “is untenable”. Rather, it is a question of weighing all the circumstances.
This is not a case in which a weak, or less than compelling, explanation has been proffered for delay. There is no explanation for the delay in commencing the judicial review proceedings proffered in sworn evidence by or for the Applicant in support of the application for an extension of time. The “grounds” set out in the amended application in support of the application for an extension of time do not address the delay. While an affidavit of Mr Issa, the Applicant’s then solicitor, was filed with the original application, it is not read. Even if there was “technical” compliance with r.44.05, it is significant that there is no sworn evidence providing any explanation by any person with knowledge as to why the Applicant delayed in bringing his application for over one year and four months after the Tribunal decision.
Insofar as the Court was asked to draw an inference from the material before it in these proceedings, it is clear that after the Tribunal decision Mr Issa made a s.417 application on behalf of the Applicant. As indicated, this is not in itself an acceptable explanation for delay in seeking review (see Vu per Jessup J at [29], MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426 per Davies J at [4], MZZQA per Mortimer J at [11] and MZZGC per Mortimer J at [15]), at least in the circumstances of this case, where there is no explanation at all from the Applicant in relation to this or any other event which occurred from the time of the Tribunal decision to the time of the application to this court and where the Applicant is legally represented (see MZZQA at [12] and MZZGC at [15]). It is not appropriate to draw some inference as to what the Applicant’s explanation for the delay might be where there is no evidence from him in that respect. While I would not draw an adverse inference from the fact of the absence of reliance on the affidavit of the Applicant’s former solicitor, the case is (now) one in which there is no explanation in affidavit evidence from the Applicant or anyone else with knowledge of the circumstances on his behalf for the delay. I am not satisfied that the Applicant has provided any “satisfactory, let alone persuasive explanation for the delay”. The delay is significant. I note the remarks of Wigney J in Tran at [38].
I have nonetheless considered whether all the circumstances are such as to satisfy me that it is in the interests of the administration of justice to grant an extension of time. However, as contended for by the First Respondent, for the reasons that follow this is not such a case.
I have considered the Applicant’s contention that the ground relied on in the proposed amended application is meritorious although, as Griffiths J pointed out in SZUWX at [77], the mere fact of an arguable case does not mean that it is always in the interest of the administration of justice to grant an extension of time.
In considering the merits of this ground for the purposes of the application for an extension of time, I have also borne in mind the remarks of Mortimer J in MZABP at [62]-[63], in particular the observation that “[i]f a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level… into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).”
The sole ground now relied on is as follows:
1. The second respondent committed jurisdictional error by denying the request by the applicant to postpone and reschedule the hearing due to illness, which was supported by medical evidence, and therefore exercised the discretion pursuant to section 426A(2) of the Migration Act 1958 (Cth), in an unreasonable, arbitrary and capricious manner and denied the applicant an opportunity to appear and give evidence and present arguments in violation of section 425 of the Migration Act 1958 (Cth). In doing so, the second respondent failed to accord the applicant substantial justice, in violation of section 420 of the Migration Act 1958 (Cth) and failed to accord the applicant natural justice and procedural fairness in violation of section 422B of the Migration Act 1958 (Cth).
a) On 5 July 2012, the applicant was invited to appear before the second respondent. In particular, the second respondent stated that it will only change this hearing date for a ‘good reason’.
b) On 11 July 2012, the applicant sent a response to the hearing invitation and indicated that the applicant and his representative would be attending.
c) On 16 August 2012, the applicant attended the hearing in Melbourne with his representative in Sydney via telephone. Prior to the hearing commencing, the applicant advised that he would like to seek an adjournment because he was not feeling well due to influenza.
d) The case worker contacted the Member (Charlie Powles) with the request and the member told the case worker that the Tribunal required medical evidence within 3 business days on or before 21 August 2012.
e) The applicant completed a hand written letter requesting an adjournment, stating that he was ‘really ill’ and ‘got a really high fever’ and his ‘voice almost lost.’(sic)
f) On 22 August 2012, the applicant’s representative sent to the second respondent a medical certificate as requested, which certified that Doctor Vladimir Vizec had examined the applicant and found the applicant was suffering from a respiratory infection and was unfit for work to and including Wednesday 22 August 2012.
g) On 22 August 2012, the second respondent wrote to the applicant and refused the applicant’s request for the hearing to be postponed. The second respondent erred and acted unreasonably, arbitrarily and capriciously by stating in that letter that the applicant did not provide ‘any’ medical certificate or other supporting evidence indicating why the applicant was not capable of participating in the hearing on 16 August 2012, when clearly the applicant did so.
h) As a consequence, the second respondent decided the application for review without giving the applicant an opportunity to appear before it to give evidence and present arguments and on 11 September 2012, affirmed the decision of the delegate to the first respondent to refuse the grant of a Protection (Class XA) visa.
i) Importantly, the applicant’s original application was made before the introduction of the complementary criterion and did not particularise such claims.
j) At [54] of the decision record, the second respondent observed that ‘as the applicant did not attend the hearing, the tribunal has been unable to question him in relation to these matter (sic), leaving his claims under clarified and relevant questions unanswered.’
k) Similarly, the second respondent observed at [60] of the decision record that ‘in view of the insufficient information and lack of detail contained in the applicant’s claims’, the Tribunal was not satisfied that there was a real risk the applicant would suffer significant harm under the complementary criterion.
l) As a result of the decision by the second respondent to refuse the applicant an adjournment due to illness, the applicant was denied an opportunity to appear at the hearing to present arguments and give evidence and the second respondent found against the applicant as a consequence.
This is, in essence, an assertion that the Tribunal committed jurisdictional error by unreasonably, arbitrarily and capriciously exercising its discretion under s.426A(2) of the Act to deny a request by the Applicant to postpone and reschedule the Tribunal hearing. It was also contended that this was a “violation” of ss.420 and 425 and a failure to accord procedural fairness “in violation” of s.422B of the Act.
In support of the arguability of this ground the Applicant cited Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 which considered legal unreasonableness in the exercise of a discretion. The Applicant relied on the findings of the plurality in Li in relation to the legal standard of unreasonableness and in particular the suggestion that it is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. Reference was also made to the remarks of Gageler J in Li at [103] that “the [Tribunal] fails to comply with the requirement essential to the valid performance of its duty to review a particular decision if it fails to consider the exercise of its power to adjourn that review in circumstances where no reasonable tribunal could fail to do so… [i]f an unreasonable failure to adjourn is material to the outcome such decision as the [tribunal] goes on in fact to make on the review is invalid.”
Reliance was also placed on principles of procedural fairness considered by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11, in particular the observations of Gaudron and Gummow JJ at [40] that a failure to agree to a reasonable request for an adjournment could constitute procedural unfairness.
While this is not a summary dismissal or strike out application, the Applicant also referred to a decision of Queen’s Bench Division of the English High Court in Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG; “The Niedersachsen” (1983) 1 WLR 1412; [1984] 1 All ER 398 in which Mustill J described the expression “good arguable case” as a case which is “more than barely capable of serious argument, and yet not necessarily one in which the judge believes to have a better than 50% chance of success”. It was also pointed out that it was well-established that the power to strike out proceedings should be exercised sparingly and only in the most hopeless of cases and submitted that this was not such a case.
In submissions in reply Mr Williams contended that the Applicant had a clear jurisdictional argument that met the “test” of a “compelling” argument, but that if it did not meet that test, then that test was not correct. It appears that this may be a reference to the observations of Gageler J in Plaintiff S178A. Relevantly, the strength of the ground should be considered relative to the length of the delay and the cogency of any explanation for the delay and in the context of weighing all relevant factors.
Counsel for the Applicant addressed the Applicant’s acceptance of the invitation to the Tribunal hearing and the fact that (as recorded in a Tribunal case note) on 16 August 2012 (the scheduled hearing date) the Applicant attended the Tribunal premises in Melbourne but, before the hearing commenced, asked a Tribunal officer for an adjournment because he was not feeling well due to influenza. It appears that the Applicant was not accompanied by his migration agent. He provided the Tribunal with a hand-written letter stating he was really ill and had a high fever and that his voice was “almost lost”. The Tribunal recorded that the Applicant was advised at that time that the Tribunal member required medical evidence within 3 business days stating why he could not complete the hearing and was told that there was no guarantee that a new hearing would be granted without sufficient evidence. A file note records that the Applicant stated that he understood the member’s request for documentary evidence within 3 working days regarding his capacity to complete the hearing. The Applicant does not dispute that he received this advice. Subsequently the Applicant’s representative was informed by telephone of the postponement of the hearing, subject to provision of medical evidence.
Three business days expired at close of business on 21 August 2012. On 22 August 2012 the Applicant, through his representative, sent the Tribunal a medical certificate dated 22 August 2012 which was said to be “as requested”, although it was a day late and did not refer to the Applicant’s medical health as at 16 August 2012 (the date of the hearing). Rather, a medical practitioner certified that the Applicant had been examined on 22 August 2012 and “found he is suffering from a respiratory infection” and “[h]e will be unfit for work up to and including Wednesday 22 August 2012”.
The Tribunal wrote to the Applicant on 22 August 2012 refusing his request for postponement of the hearing. The letter reminded him that he had been informed of the need for an assessment by a medical practitioner indicating why he was not capable of participating in the hearing on 16 August 2012. It also recorded that he had told the Tribunal officer on 16 August 2012 that he had a medical certificate but had given it to Medicare and would provide one to the Tribunal within the time specified. The letter continued:
Today, 22 August 2012, the Tribunal received from your representative a letter enclosing a medical certificate stating that a medical practitioner examined you on 22 August 2012, found you suffering from a respiratory infection and that you are unfit for work on Wednesday, 22 August 2012. This medical evidence does not indicate that you were unable to participate in the hearing on 16 August 2012. Nor does it provide any assessment of your medical condition or capacity to participate in a hearing on 16 August 2012.
Accordingly, the Tribunal finds that you have not provided any medical certificate or other supporting evidence indicating why you were not capable of participating in the hearing on 16 August 2012.
In light of the above, the Tribunal has considered the information before it in relation to your request to have the hearing postponed until another date. The Tribunal notes the absence of any medical certificate or other assessment by a competent medical practitioner as to your capacity to participate in the hearing scheduled for 16 August 2012 despite you having been given three working days, which in this case also included the two days of the weekend 18 – 19 August 2012, to provide evidence of this sort, which you have not done.
As a result, following ss 425 & 426A of the Act, the Tribunal refuses your request for the hearing to be postponed.
However the Tribunal gave the Applicant the opportunity to provide any further written information or submissions by 31 August 2012. He provided a statutory declaration on 31 August 2012.
In its reasons for decision, the Tribunal referred to the events of 16 August 2012, the Applicant’s request for an adjournment and the advice he and his representative were given as to the need for sufficient medical evidence as to why he was unable to participate in the hearing on 16 August 2012. It set out the content of the medical certificate received on 22 August 2012 and the terms of its letter of that date. In its findings and reasons the Tribunal addressed the requested adjournment in some detail, as follows:
46. The tribunal has considered the evidence provided by the applicant as to why he was unable to participate in the hearing scheduled for 16 August 2012, being the handwritten note provided by the applicant on that day; the medical certificate provided on 22 August 2012 and the statutory declaration. The tribunal notes that the applicant was repeatedly advised that he needed to provide supporting medical evidence for his claim that any medical problem he may be suffering would affect his capacity to participate in the hearing scheduled for 16 August 2012 to a degree that he would be unable to do so. The only medical evidence provided to date is the medical certificate provided on 22 August 2012.
47. The tribunal accepts the medical certificate provided as evidence that the applicant was suffering a respiratory infection when he was examined by the medical practitioner who issued the certificate on 22 August 2012. While the medical certificate states the applicant was “unfit for work up to and including Wednesday, 22 August 2012” [emphasis added], the tribunal does not accept the medical certificate as evidence that the applicant was suffering a respiratory infection or any other medical problem on 16 August 2012 or as evidence that the applicant was unable to participate in or attend the scheduled hearing on 16 August 2012 to give evidence and present arguments as a result of a medical or health problem. Further, the tribunal does not accept that the medical certificate is evidence that the medical practitioner who issued the certificate, or any other medical practitioner, assessed the applicant’s ability or capacity to attend and participate in the hearing before the tribunal on 16 August 2012.
48. The tribunal notes the claim made by the applicant in his hand written note provided to the tribunal on 16 August 2012 that he was not well on that day and also his claims made in the statutory declaration that he has been suffering an addiction to “smoking” and alcohol that resulted in him suffering a medical problem on 16 August 2012 that affected his ability or capacity to attend and participate in the hearing scheduled for that day. The tribunal notes the applicant and the representative undertook to provide medical evidence in support of the claims made in the statutory declaration within seven days of 3 September 2012, being 10 September 2012, yet no medical evidence was provided by the end of 10 September 2012.
49. As a result, the tribunal has no further information before it about any medical or health problem the applicant may have been suffering on or about 16 August 2012 which affected his ability to attend and participate in the hearing scheduled for that day. Nor does the tribunal have any information before it as to any other reason why the applicant was unable to attend and participate in the hearing scheduled for 16 August 2012.
50. In the absence of any medical evidence as to the applicant’s state of health on 16 August 2012 in circumstances where the applicant has repeatedly undertaken to provide medical evidence about his claimed medical condition on that day but has not done so, the tribunal does not accept the applicant’s assertions that he was suffering a medical problem that prevented him from being able to participate in the hearing scheduled for 16 August 2012.
51. Accordingly, the tribunal does not accept that the applicant was unable to attend and participate in the hearing scheduled for 16 August 2012 for medical or any other reasons. In the circumstances and for the reasons above, as it advised the applicant in writing in its letter dated 22 August 2012 the tribunal has decided under ss 425 & 426A of the Act to make a decision on the application for review without taking any further action to enable the applicant to appear before it. The tribunal has considered the further information provided by the applicant in the statutory declaration but, in the absence of any medical evidence supporting the applicant’s claims made in the statutory declaration, the tribunal has not changed its decision to make a decision on the application for review without taking any further action to enable the applicant to appear before it.
The Tribunal considered the Applicant’s claims, including in his statutory declaration of 31 August 2012. It found that the Applicant’s non-appearance at a hearing meant it been unable to question him about certain matters, leaving his claims unclarified “and relevant questions unanswered”. It also had regard to other concerns, in particular his delay in applying for protection and the vagaries and lack of detail in his claims to fear harm in Lebanon as a homosexual. It was not satisfied that he met the Refugees Convention or complementary protection criterion.
The particulars to the ground assert that the Tribunal acted unreasonably in stating in its letter of 22 August 2012 that the Applicant had not provided “any” medical certificate or other supporting evidence indicating why he was not capable of participating in the hearing on 16 August 2012 when, it was contended, he clearly did so. It was submitted that as a consequence the Applicant was denied an opportunity to appear before the Tribunal to give evidence and present arguments. It was also said to be important that the Applicant’s protection visa application had been lodged before the introduction of the complementary protection criterion and hence had not particularised claims in that respect at that time.
The Applicant relied upon Bhardwaj at [40] as authority for the proposition that denial of a reasonable request for adjournment could constitute procedural unfairness. Counsel for the Applicant submitted that in these circumstances the absence of a “satisfactory” explanation for the delay should not outweigh the merits of the substantive application.
The First Respondent conceded that the ground of review was “weak but arguable”, but submitted that it was no more than this.
It is the case that in considering the reinstatement application I reached the view that, having regard to the particular circumstances of the case, including the explanation for the Applicant’s non-appearance at the scheduled hearing, he had “raised a ground that has sufficiently arguable prospects of success such as to satisfy me that good reason has been established to exercise the discretion to set aside the dismissal for non-appearance so that he has the opportunity to present his case for an extension of time to seek review of the Tribunal decision” (see SZTUQ at [61]).
However, contrary to the Applicant’s contention, it does not necessarily follow that the existence of an arguable ground in that sense such as to warrant reinstatement so the Applicant could pursue an extension of time application means that it is necessarily in the interests of the administration of justice to grant the extension of time (see Griffiths J in SZUWX at [77]). A reinstatement application is not of the same nature as an application for an extension of time within which to bring proceedings commenced outside the statutory time limit provided for in the Act. Under s.477(1) the statutory requirement imposed by the Parliament that an application be filed within 35 days is the general rule. An extension of time is an exception to that rule.
Insofar as the Applicant appeared to submit that the Tribunal erred by finding that the Applicant did not provide “any” medical certificate when he “clearly” did, this is a reference to the letter of 22 August 2012 which the First Respondent submitted was clearly referring to the absence of medical evidence addressing the Applicant’s ability to participate in a hearing as at 16 August 2012. In its findings and reasons the Tribunal did not find that the Applicant did not provide any medical evidence, but rather that he did not provide any medical evidence as to his state of health on 16 August 2012.
To the extent the ground relies on an asserted finding that the Tribunal proceeded on the basis that the Applicant did not provide “any” medical evidence, there is much strength in the First Respondent’s submission that the ground is factually misconceived and that the Tribunal’s finding that the Applicant was not suffering a medical problem that prevented him from being able to participate in the hearing on 16 August 2012, the day scheduled, was clearly open on the evidence before it. It was submitted that the Tribunal had given a comprehensive, highly intelligible and persuasive set of reasons for its decision to proceed under s.426A of the Act.
No authority was cited in the Applicant’s written submissions in support of the proposition that there was a breach (or at least an arguable breach) of ss.420, 422B and 425 of the Act. The First Respondent submitted that there could not be a breach of s.425 of the Act as the Applicant had been invited to a hearing and that there was no arguable breach of s.420 or s.422B of the Act. On this basis it was submitted that the ground had no prospects of success and was not sufficiently arguable to warrant an extension of time.
There is considerable force in the First Respondent’s submissions in relation to whether there is a sufficiently arguable ground of jurisdictional error. Considered on a reasonably impressionistic level, as an assertion of the unreasonable exercise of a discretion, while the ground in the amended application is “arguable” in the sense that on its face and without detailed argument it is not “plainly hopeless” (see MZABP at [62] per Mortimer J), it is not such as to reveal, even on an impressionistic basis, sufficient prospects of success to warrant or support an extension of time in all the circumstances of this case.
The Applicant’s argument in relation to the reasonableness of the Tribunal’s exercise of its discretion and a denial of procedural fairness depends, among other things, on the view that would be taken of the medical certificate before the Tribunal. As indicated, the particulars to this ground assert that the Tribunal erred and acted unreasonably, arbitrarily and capriciously by stating in the letter of 22 August 2012 (refusing the request for postponement of the hearing and giving the Applicant the opportunity to provide further written submissions before the decision was made) that the Applicant had not provided “any” medical certificate or other supporting evidence indicating why he was not capable of participating in the hearing on 16 August 2012. The medical evidence provided was dated 22 August 2012. It referred to him suffering a “respiratory infection” on 22 August 2012 and did not address his fitness to participate in a Tribunal hearing.
Whether the ground would ultimately be made out is debatable. This would be a matter for detailed submissions and consideration. On its face and as addressed in submissions it is far from compelling. It is significant that, even considered on a “reasonably impressionistic” level, the Applicant has not demonstrated that his case is more than arguable in the sense of not plainly hopeless. The Applicant has not established that he has a clear, strong, or compelling case of jurisdictional error, albeit that the ground is not absolutely devoid of merit (see SZUWX per Bromwich J at [4]). While it is “arguable” in the sense of not plainly hopeless, if in this context the existence of such an “arguable” case were to be sufficient to outweigh a lengthy and unexplained delay in commencing proceedings, the time limit in s.477(1) would be deprived of any real effect.
I have considered the other circumstances of the case and all matters cumulatively. As the First Respondent acknowledged, there are no mandatory relevant considerations for the Court to take into account (see SZUWX). It is essentially for the Court to determine and assess what the relevant considerations are in light of the material put before it and to weigh such considerations.
There is no real prejudice to the Respondents although, as suggested, an extension of time would involve the cost and time of additional litigation. I also bear in mind the absence of an appeal, as such, from a decision refusing an extension of time.
The Applicant submitted that the impact on him would be substantial if the Court denied the extension of the time in circumstances where he was not present at the Tribunal hearing and as a result faced deportation to his country of feared persecution without being afforded an opportunity to appear and present evidence and make arguments, particularly with regard to his claims to fear significant harm due to his homosexuality. It was submitted that it was in the interests of the Australian community to have such “important” claims determined according to law.
I have borne in mind the potential impact on an applicant of being refouled to his country of origin without being heard. However I do not accept that the Applicant had no opportunity to advance any complementary protection claims in the absence of a Tribunal hearing. He had, and took, the opportunity to provide a statutory declaration on 31 August 2012.
As well as the public interest referred to by the Applicant, which I bear in mind, there is a significant public interest in the timely disposition of litigation. In terms of the public administration of the court system, a burden is occasioned by delays caused by such late applications. In Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9; [2001] FCA 929 at [62] Gyles J stated, albeit in relation to raising a fresh ground on appeal, that in a public law matter such as review of a Tribunal decision, “it can always be said that no actual prejudice apart from costs is suffered by the respondent compared with the prejudice to the appellant. It can easily be overlooked that there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible.” These observations, which are in point, were cited with approval by Lander and Middleton JJ at [64] in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1.
As indicated, I accepted that there was an arguable ground in considering the reinstatement application. I did not find, and do not find, any strong or compelling case of jurisdictional error. I do not accept that the mere fact that the case cannot be described as unarguable is sufficient to justify granting an extension of time. Extraordinarily, the Applicant, who is legally represented, has chosen to give no evidence in explanation for the significant delay in circumstances where there were obvious questions to be asked about what had occurred after the Tribunal decision.
The evidence before the Court in these proceedings does not demonstrate a “sufficiently” arguable, let alone compelling or “exceptional” case to warrant an extension of time, having regard to all the circumstances, in particular the length of the delay and the absence of a reasonable and satisfactory explanation which weigh heavily against granting the extension of time (see SZVMA per Farrell J at [39] and SZUWX per Griffiths J at [77]).
Having considered all the circumstances, I am not persuaded that, on balance, it is in the interests of the administration of justice that an extension of time be granted for the Applicant to seek review of the Tribunal decision. Therefore, the application should be refused.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 20 December 2017
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