FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUPE v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 698 |
| Catchwords: PRACTICE & PROCEDURE – Application for an extension of time within which to make a competent application to the Court – factors going to an extension of time considered – no satisfactory explanation for the delay – whether there are reasonable prospects of success – no reasonable prospects of success – application refused. |
| Legislation: Evidence Act 1995 (Cth), s.55 Migration Act 1958 (Cth), ss.36, 375A, 424AA, 438, 468E, 468I, 476, 477 |
| Applicant: | SZUPE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1761 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 26 October 2016 |
| Date of Last Submission: | 10 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 28 March 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application to extend time made pursuant to s.477(2) of the Migration Act 1958 (Cth) on 26 June 2014 is refused.
The applicant pay the first respondent’s costs set in the amount of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1761 of 2014
| SZUPE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 26 June 2014 seeking an extension of time in which to make a competent application to the Court pursuant to s.476 of the Act. The proposed substantive application to the Court seeks review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) which, on 22 April 2014, affirmed the decision of the Minister’s delegate to refuse a protection (Class XA) visa to the applicant.
Section 477(1) of the Act requires that any such application be made within 35 days of the date of the relevant Tribunal decision. In the current case, the application was filed outside that time limit by 30 days. The application is therefore not competent.
Section 477(2) provides for an extension of time within which to make a competent application to the Court if the applicant makes an application for an extension of time in writing, and the Court considers that it is in the interests of the administration of justice to extend time.
The applicant has made such an application in writing in the following terms:
“Submitted to the Minister for Intervention and the time was expired.”
The issue for the Court now, is whether it is in the interests of the administration of justice to extend time. The factors to be considered in relation to the question of the extension of time are not exhaustive. However, there are a large number of authorities which provide direction and guidance to this Court, as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284Error! Hyperlink reference not valid.(2013) 236 FCR 442, SZUWX v Minister for Immigration and Border Protection[2016] FCAFC 77Error! Hyperlink reference not valid.(2016) 238 FCR 456, MZZLD v Minister for Immigration and Border Protection[2016] FCA 1201; (2016) 154 ALD 316, MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110; (2016) 152 ALD 478, Ahmed v Minister for Immigration and Border Protection[2016] FCA 751 and SZTES v Minister for Immigration and Border Protection[2015] FCAFC 158 see also Hunter Valley Developments Pty Ltd v Cohen[1984] FCA 186; (1984) 3 FCR 344 at [18] – [23]).
In the current case, the particular factors arising from the circumstances presented in considering the exercise of discretion appear to be, the length of the delay, whether any satisfactory or reasonable explanation has been given for the delay, whether the Minister would suffer any prejudice if time were extended, and primarily, whether the proposed substantive application for judicial review is sufficiently, or reasonably, arguable, or has reasonable prospects of success, or has such merit to justify the extension of time to allow the matter to proceed to a final hearing in the interests of the administration of justice. In deciding whether to grant an application for an extension of time, the grounds of the proposed substantive application should have such prospects of success, so as not to render the extension of time an exercise in futility.
Evidence Before the Court
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavit of the applicant made on 26 June 2014 attaching a copy of the relevant Tribunal decision. The affidavit was admitted subject to relevance (the relevant Tribunal decision is also contained in the Court Book (“RE1”)).
c)The affidavit of the applicant made on 14 October 2014 attaching a copy of the transcript (“T”) of the hearing before the Tribunal. I note that the transcript is not certified by the relevant transcriptionist. This document was objected to by the Minister on this basis (although not pressed too strongly as the applicant was unrepresented), and on the basis of relevance. The affidavit was admitted subject to relevance.
d)The affidavit of Julian D’Arcey Pinder, Solicitor, made on 17 October 2016, annexing redacted copies of the documents in folios 105 and 106 on the Minister’s departmental file relating to the applicant, and said to be the subject of a certificate issued pursuant to s.438 of the Act.
Before the Court
The applicant first appeared before the Court on 20 August 2014 represented by a solicitor. The Minister was also represented by a solicitor. The applicant’s legal representative indicated that he wished to withdraw from the applicant’s representation. Although the solicitor had signed the “s.486I certification” on the application to extend time made to the Court, and with reference to s.486E of the Act, it was clear that he had an extremely limited, and at times completely incorrect, understanding of the relevant law.
I granted the applicant’s solicitor leave to withdraw from the proceedings, and to ensure that the applicant was not disadvantaged, I allowed him further time to obtain legal advice. Amongst other things, I made orders allowing the applicant to file an amended application for an extension of time. The matter was listed for mention at a callover before a Registrar of the Court on 11 February 2015.
On that date, the applicant appeared in person with the assistance of an interpreter in the Vietnamese language. The Minister was represented by a solicitor. The Registrar made orders directing the parties to file written submissions in the matter, relative to the hearing date. The Minister filed written submissions on 18 October 2016 (“the Minister’s first written submissions”). The applicant did not file any submissions at this time.
Despite the orders made by the Court on 20 August 2014 allowing the applicant to file an amended application for an extension of time, he did not do so. The application for an extension of time was subsequently listed for hearing on 26 October 2016. At the hearing, the applicant appeared in person with the assistance of an interpreter in the Vietnamese language. The Minister was represented by a solicitor.
The matter was reserved at the conclusion of the hearing on 26 October 2016. Subsequently, on 15 February 2017, orders were made by consent that effectively unreserved the matter pending the outcome of the Minister’s Special Leave application to the High Court of Australia in respect of the Full Federal Court judgment in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (“Singh”).
Special Leave was refused by the High Court of Australia on 12 May 2017 and the matter was subsequently listed for further directions on 21 June 2017. On that date, the Court made orders providing for the filing of further written submissions concerning the documents attached to the affidavit of Mr Pinder made on 17 October 2016. The Minister filed further written submissions on 19 July 2017 (“the Minister’s second written submissions”) and the applicant filed written submissions on 10 August 2017.
Application for Extension of Time
At the hearing of the extension of time, it was clear that the applicant had no understanding of the proceedings that he had caused to be made in this Court. I attempted to explain to the applicant the factors relevant to the consideration of the extension of time pursuant to s.477(2) of the Act.
The applicant read out from a lengthy written statement that he said had been prepared with the assistance of “someone” from his “religious group”. The applicant’s statement was a lengthy disagreement with the factual findings made by the Tribunal. In essence, the applicant’s complaint was that he could not understand why the Tribunal did not believe him. Further, the applicant did not agree with the Tribunal’s disbelief of his claims. In short, the applicant’s statement sought impermissible merits review. It did not assist the applicant in arguing for the grant of the extension of time.
The delay in this case is of moderate length. The applicant also did not provide a satisfactory explanation for this delay. The applicant’s sole ground to extend time was prepared with legal assistance, and is as reproduced above at [4]. In short, the applicant’s explanation was that he did not make his application to the Court because he sought Ministerial intervention instead. The applicant was assisted and represented in the making of his protection visa application, and the application for review to the Tribunal by Mr Cuong Vo, a registered migration agent, who also describes himself as a solicitor (CB 192). It is reasonable in the circumstances to infer, given this involvement, that the applicant had access to legal advice during this period.
Some authorities would suggest that merely seeking Ministerial intervention is not, of itself, a satisfactory explanation for the delay (MZZVK v Minister for Immigration and Border Protection [2016] FCA 854 at [46], Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520).
Other authorities however, allow for the possibility that it may, in certain circumstances, be a satisfactory explanation for the delay (SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1816 at [11] per Graham J, SZFGO v Minister for Immigration & Citizenship [2008] FCA 1478 at [17] – [21] per Edmonds J, Hui v Minister for Immigration & Anor [2011] FMCA 486 at [29] – [30] per Smith FM, Kaur v Minister for Immigration & Anor [2010] FMCA 634 at [58] – [72] per Barnes FM (as she then was) and MZYII v Minister for Immigration & Anor [2011] FMCA 193 at [21] per Riley FM (as she then was)).
Before the Court, the applicant also made no reference to his seeking Ministerial intervention as an explanation for the delay in coming to the Court. Rather, the applicant made a number of assertions about his former lawyer. In essence, these were no more than the applicant asserting that he had no knowledge of relevant procedures and law, but left the matter in the hands of his lawyer.
As mentioned above, the applicant was given the opportunity by orders made by the Court on 20 August 2014, to file any amended grounds of his application for the extension of time, and any evidence by way of affidavit in support. Nothing has been filed by the applicant in this regard.
Therefore, the Court is left with no evidence to support the applicant’s submissions regarding his former lawyer. However, even if these submissions had been given in evidence, they do not rise to anything beyond a statement of his personal ignorance of the relevant law, and that his former lawyer had made the request for Ministerial intervention, and the application for the extension of time to the Court.
In the absence of evidence to support the applicant’s assertions, it is not possible to find that the solicitor engaged in any misconduct. In any event, the applicant’s submissions, when properly understood, are no more than a grievance that in spite of having left his affairs in the hands of his former lawyer, to whom he had paid a lot of money, he did not obtain the migration outcome he had wanted. That migration outcome was the grant of a protection visa. It is also of note that the applicant elected to leave the matter in the hands of his former lawyer. Therefore, it cannot be said that he did not have the opportunity to access legal advice. In all, there is no satisfactory explanation for the applicant’s delay in coming to the Court.
The Minister did not express that he would suffer any prejudice if time were to be extended. In those circumstances, this is not a factor that weighs against the exercise of the discretion to extend time.
However, of far greater weight in not exercising the discretion in the applicant’s favour, is that the sole ground of the proposed substantive application, prepared with legal assistance, lacks merit. The sole ground of the proposed substantive application to the Court is in the following terms:
“1. The applicant had been threatened, imprisoned and he had feared to be returned to Vietnam, on the ground of religious belief, under the Migration Act 1958, s.476.”
The background to this case is as follows. The applicant is a citizen of Vietnam who arrived in Australia on a visitor visa on 16 September 2012 (CB 2 and CB 4). The applicant applied for a protection visa which was received by the Minister’s department on 27 September 2012 (CB 1 to CB 81 with annexures). He was assisted by Mr Vo, a registered migration agent and solicitor (CB 51).
The applicant’s claims to fear harm were that he had faced difficulties when he was young because of his family’s connection with the former French regime in Vietnam. Further, that he had become a pastor in a Protestant church and suffered harm because of his religious activities. He provided a large number of documents in support of his claims.
The applicant attended an interview with the delegate on 11 February 2013 (CB 146.8). The applicant’s representative provided further documents to the Minister’s department following the interview, and written submissions (CB 114 to CB 126 with annexures). The delegate refused the grant of the protection visa on 26 February 2013 (CB 129 to CB 165). The applicant applied for review to the Tribunal on 15 March 2013 (CB 175 to CB 180). He continued to be represented by Mr Vo (CB 177).
The applicant and his representative appeared before the Tribunal at a hearing on two occasions, one on 10 March 2014 and the other on 14 April 2014 (CB 207 to 209 and CB 217 to CB 219). At the hearing on the second occasion, the Tribunal put to the applicant for comment pursuant to s.424AA of the Act, information concerning the applicant’s membership of a particular church which it obtained from the applicant’s application for a “short stay visa” which he used to travel to Australia ([31] at CB 233 to [32] at CB 233 to CB 234).
The Tribunal affirmed the delegate’s decision on 22 April 2014 (CB 227 to CB 245). The Tribunal accepted that the applicant had been a pastor in a Protestant church. However, the Tribunal did not accept that he had suffered difficulties as a result of this. The Tribunal had concerns about the applicant’s credibility which it found arose from a number of inconsistencies and implausibilities in his evidence
([16] at CB 230 to [67] at CB 241).
The Tribunal also had regard to the documentary evidence submitted by the applicant ([69] at CB 241 to [74] at CB 243). However, it found that these documents did not overcome the difficulty it had with the applicant’s credibility.
The Tribunal noted references made in the Minister’s departmental file relating to the applicant to two applications made by the applicant for visas to travel to Australia. It found none of the information there was “adverse as such” to the applicant’s claims, except for the information put to the applicant pursuant to s.424AA of the Act ([75] at CB 243 and see [28] above).
The Tribunal accepted some of the applicant’s claims. In particular, the Tribunal accepted the applicant’s father and grandfather had served the former French regime in Vietnam. It accepted that he had faced some discrimination in Vietnam because of this, and that he had left Vietnam for Hong Kong. However, it found that the applicant did not claim to have any difficulties for this reason after he returned to Vietnam in 1995 ([76] at CB 243).
The Tribunal had regard to country information and concluded that the applicant would not suffer serious or significant harm for reason of his religion. It found he did not satisfy either criteria at s.36(2) of the Act for the grant the protection visa.
As the Minister submits, the ground of the application to the Court does nothing more than ask the Court to engage in impermissible merits review (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1986) 185 CLR 259 and Minister for Immigration and Multicultural Affairs v Eshetu[1999] HCA 21 (1999) 197 CLR 611 and see the Minister’s first written submissions at [24]). The ground lacks merit and weighs against the granting of the extension of time.
Before the Court, the Minister, consistent with his obligation as a model litigant, raised one other issue. The relevant background to this issue is as follows. On 26 February 2013, a delegate of the Minister issued a certificate said to have been issued pursuant to s.438 of the Act, concerning the disclosure of certain information regarding the applicant’s case (“the s.438 certificate”). The s.438 certificate was on the Minister’s departmental file relating to the applicant.
Section 438 of the Act at the relevant time was in the following terms:
“Refugee Review Tribunal’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.”
The s.438 certificate contained the following (see annexure “JDP01” to the affidavit of Mr Pinder):
“I notify the Refugee Review Tribunal that paragraph 438(1)(b) of the Migration Act 1958 applies to the information in folios 105 and 106 of file number CLF2012/201479. This information was given to an officer of the Department of Immigration and Citizenship in confidence or contains information about a third party.
In my view, this information should not be disclosed to the applicant or the applicant’s representative because it contains documents affecting personal privacy.
The Refugee Review Tribunal’s use and disclosure of this information is subject to the provisions of subsections 438 (3) and (4) of the Migration Act 1958.”
In this light, the Minister drew attention to MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 (“MZAFZ”) handed down on 7 September 2016 and Singh handed down on 19 December 2016. In MZAFZ, the Federal Court, on appeal from this Court, found that the applicant in that case was denied procedural fairness because the Tribunal did not disclose the existence of a certificate issued pursuant to s.438(1)(a) of the Act.
The Federal Court also found that the Tribunal had failed to give the applicant, in that case, the opportunity to make submissions on the validity of the s.438 certificate, and its proposed use. In short, for current purposes, the relevant Tribunal decision in MZAFZ was affected by jurisdictional error because the applicant was denied procedural fairness in the conduct of the review.
In MZAFZ, the Court held that the statement by the Tribunal in its decision record, that it had the departmental file before it, was sufficient to establish that the Tribunal had regard to that file which included the s.438 certificate (MZAFZ at [48]). On this basis, the Court held that the “the Tribunal acted in some unspecified way on the invalid certificate in relation to the documents” (MZAFZ at [40]). This of itself constituted jurisdictional error (MZAFZ at [44]). I further note that in MZAFZ, Beach J did not have regard to the documents the subject of the s.438 certificate.
Singh also dealt with a “certificate”, but one that was issued pursuant to the “analogous” (for current purposes) s.375A of the Act (“the s.375A certificate”). The Court there held that the failure to disclose to the applicant the existence of the s.375A certificate was a denial of procedural fairness.
On 24 May 2017 the Federal Court on appeal from this Court, handed down AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 (“AVO15”). In that case, Justice Barker had regard to the documents covered by the s.438 certificate (issued pursuant to s.438(1)(a) of the Act). The Court found that in that case, the Tribunal had had “no regard” to the documents, and in any event, they were only of “passing contextual relevance” to the application (AVO15 at [87]). Justice Barker also found that the jurisdictional error in MZAFZ and Singh could “have no practical application” in that case, and the applicant did not lose any opportunity to advance their case before the Tribunal, because “[n]o practical injustice” was identified (AVO15 at [90] – [91]).
One point of difference is that the s.438 certificates in MZAFZ and AVO15 were issued pursuant to s.438(1)(a) and not s.438(1)(b) of the Act as in the current case (see also SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055). In any event, since MZAFZ, Singh and AVO15, three Full Federal Court judgments have been handed down in relation to the “certificate” issue (see Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 (“CQZ15”), Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 (“BJN16”) and BEG15 v Minister for Immigration and Border Protection[2017] FCAFC 198 (“BEG15”)).
Against this background, in the current case, the following is of relevance. The affidavit of Mr Pinder made on 17 October 2016 was read into evidence. The certificate, and the relevant annexures to the affidavit [the documents to which the certificate relates are to be regarded as exhibits] were admitted into evidence pursuant to s.55 of the Evidence Act 1995 (Cth) (CQZ15 at [62] – [65], BJN16 at
[62] – [69] and BEG15 at [30]). That is, the documents are relevant in order to determine whether the applicant was denied procedural fairness by the Tribunal.
The two documents in question are internal departmental records involving confirmation of an interpreter booking, and confirmation of the provision of interpreting services (see annexure “JDP01” to the affidavit of Mr Pinder).
There is no reference to the documents the subject of the s.438 certificate in the Tribunal’s decision (AVO15 at [87]). Having regard to the documents, there is no basis to say that the Tribunal “acted on” the certificate (MZAFZ at [40]).
There is nothing to indicate that the Tribunal considered these documents as material to the conduct of the review of the decision before it (CQZ15 at [65]). It is reasonable to infer that the Tribunal did not refer to, or act on, the s.438 certificate or the relevant documents because the content of the documents could have had no impact on the task it was jurisdictionally required to exercise. There was therefore no denial of procedural fairness to the applicant.
Conclusion
In all, there is no satisfactory explanation for the delay in making the application to the Court. The ground of the proposed substantive application to does not raise any arguable case such as to warrant the extension of time. As set out above, nor is there any other factor that would argue in favour of the exercise of the Court’s discretion. It is therefore appropriate to refuse the extension of time. I will make that order.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 28 March 2018
- AGLC
- SZUPE v Minister for Immigration [2018] FCCA 698
- Case
- [2018] FCCA 698
- Decision Date
CaseChat Overview and Summary
The Court was required to determine whether to grant an extension of time for the applicant to make a competent application to the Court. In considering this application, the Court had to assess whether there was a satisfactory explanation for the delay in filing the application and whether the applicant had reasonable prospects of success in the substantive review.
Justice Nicholls found that there was no satisfactory explanation for the significant delay in the applicant filing their application. Furthermore, the Court concluded that the applicant had no reasonable prospects of success in the substantive review, given that the sole ground of review sought to re-examine the merits of the Tribunal's decision rather than identify an error of law. Accordingly, the application for an extension of time was refused.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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