SZVYC v Minister for Immigration
[2016] FCCA 2874
•25 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVYC v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2874 |
| Catchwords: MIGRATION – Application for an extension of time under s.477 of the Migration Act 1958 (Cth) – application refused. |
| Legislation: Migration Act 1958 (Cth), s.477 |
| Cases cited: AZAFX v Federal Circuit Court of Australia [2016] FCA 1139 Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; [2014] FCAFC 1 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 SZLIH v Ministerfor Immigration and Citizenship [2009] FCA 108 SZOCH v Minister for Immigration and Citizenship [2010] FCA 887 SZTES v Minister for Immigration and Border Protection [2015] FCA 719 SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 SZVLE v Minister for Immigration and Border Protection & Anor [2016] FCCA 2509 |
| Applicant: | SZVYC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3654 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 25 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2016 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
The application for an extension of time under section 477 of the Migration Act 1958 (Cth) is refused.
The Applicant pay the costs of the First Respondent fixed in the amount of $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3654 of 2014
| SZVYC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for an extension of time pursuant to s.477(2) of the Migration Act1958 (Cth) (the Migration Act).
The background to these proceedings is that the Applicant, a citizen of Lebanon, applied for a protection visa. His application was refused and he sought review by the former Refugee Review Tribunal. On 17 July 2014 the Tribunal affirmed the decision not to grant the Applicant a protection visa. On 31 December 2014 the Applicant filed an application for judicial review of the Tribunal decision. He sought an extension of time.
Under s.477(1) of the Migration Act such an application must be made to the court within 35 days of the date of the migration decision. Under subsection (2) the court may extend that 35 day period as it considers appropriate if an application for such order has been made in writing to the court specifying why the applicant considers it is necessary in the interests of the administration of justice to make such order and the court is satisfied that it is necessary in the interests of the administration of justice to make the order.
As required by s.477(2)(a), “grounds” for an extension of time are set out in writing in the application. They are as follows:
The Compliance Section advised me to depart Australia. I was not aware that the decision of the Refugee Review Tribunal was made on 17 July 2014. This decision was not given to me by my migration agent.
My migration agent made a letter to the Minister on my behalf without my knowledge.
The affidavit supporting the application did not address the delay.
When this matter first came before a registrar for directions, orders were made by consent which, among other things, listed the matter for “final hearing” notwithstanding the fact that the Applicant required an extension of time. In those circumstances I adjourned the scheduled hearing date. I also gave the Applicant the opportunity to file affidavit evidence in relation to the extension of time application, in particular in relation to any explanation for the delay in commencing these proceedings. In addition, at my request, the solicitor for the First Respondent prepared submissions in relation to relevant principles and recent developments in relation to extension of time applications. These are detailed and helpful. I will refer to them briefly, but have taken them into account in full in these proceedings.
The matter was listed today for the hearing of the application for an extension of time (with a final hearing to follow if the extension of time was granted).
The Applicant did not file any further affidavit evidence, although he sent an email to the solicitors for the First Respondent which addressed his circumstances since his arrival in Australia (but not the delay in commencing proceedings between July 2014 and December 2014). He was given, and took, the opportunity to give oral evidence in relation to his explanation for the delay in commencing proceedings.
In SZTES v Minister for Immigration and Border Protection [2015] FCA 719, Wigney J outlined principles regarding extension of time applications including (as is relevant to the present case lest there be any confusion arising from the original consent orders made by a registrar) that the pre-condition of whether the extension of time is necessary in the interests of the administration of justice is to be formed to the satisfaction of the court and is not referable to whether the Minister in a particular case opposes or consents to an extension of time (see SZTES at [44]).
As Wigney J pointed out, s.477(2) does not define or confine the matters to which the court shall have regard, although there are factors that are ordinarily taken into account, including whether there has been a reasonable and adequate explanation for the delay, whether there is any prejudice to the Minister and whether the Applicant’s substantive case is sufficiently arguable to justify the extension of time (also see SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284).
It has also been suggested that it is relevant to take into account the fact that there is no right of appeal from a decision refusing an extension of time (see AZAFX v Federal Circuit Court of Australia [2016] FCA 1139). I have taken this into account.
I have also borne in mind that, as Mortimer J explained in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63] (referred to with approval by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110), in considering the merits of a case and, in particular, whether a case is “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” it is generally inappropriate to investigate fully the merits of the substantive case (see SZTES at [49]).
For the reasons that follow I am not satisfied that it is necessary in the interests of the administration of justice to extend the 35 day period for making an application to this court as provided for in s.477(2) of the Migration Act.
I have had regard to all of the relevant circumstances insofar as possible on the material before the court. There is a weighing process in the consideration of an application for an extension of time. It is convenient to consider first the issue of whether there is a reasonable and adequate explanation for the delay. In the present matter, as the First Respondent submitted, the delay is substantial. The Tribunal decision was dated 17 July 2014. To meet the 35 day requirement an application to this court should have been filed by 21 August 2014. It was not filed until 31 December 2014 which, as the First Respondent calculated, was a delay of some 132 days.
The Applicant’s explanation for the delay consists of the unsworn explanation provided in the application for review and his oral evidence adopting such explanation. Underlying this explanation was a claim that the Applicant’s former adviser (who I note from the Courtbook was his authorised recipient) did not inform him of the Tribunal decision in a timely fashion or, it seems, advise him that he had to start proceedings in this court within 35 days of the Tribunal decision.
It has to be said first that the Applicant’s oral evidence in relation to when his previous adviser (who I will refer to as Mr I) ceased to act for him was lacking in clarity. The Applicant said that he became dissatisfied with his adviser, although it was not clear whether that dissatisfaction was because of events that predated or followed the filing of the application to this court. He then obtained the assistance of a Mr Laba Sarkis.
The Applicant (who had the assistance of an interpreter) did not explain precisely when Mr I ceased to act for him. His evidence appeared to be inconsistent. First he seemed to say not only that Mr I had not told him about the need to start proceedings in this court within 35 days but also that Mr I had not told him about filing affidavit evidence and had not assisted him when he gave him the Courtbook. On the other hand the Applicant also seemed to claim that it was only when he went to see Mr Laba Sakis that he understood that he had to start proceedings in this court.
The Tribunal decision was sent to the Applicant c/- Mr I under cover of a letter dated 18 July 2014. This was consistent with the Applicant’s appointment of Mr I as his authorised recipient.
The Applicant claimed he was not given the decision by his agent. He claimed his “migration agent” (apparently a reference to Mr I) had sought Ministerial intervention without his knowledge. It is clear that Mr I sought Ministerial intervention on behalf of the Applicant. Whether or not such application was made without the Applicant’s knowledge is not entirely clear on the evidence. The Courtbook contains an application on the letterhead of the Applicant’s former solicitors dated 14 August 2014 seeking Ministerial intervention. However, in addition, the Courtbook contains a completed Form 956 dated 14 August 2014 stating that Mr I had been appointed by the Applicant to provide assistance with matters described as “Ministerial intervention – BVE”. This form includes a signature under the heading “Declaration by client”. The Applicant did not address this evidence.
In addition, on 26 September 2014 information was provided to the section of the Department concerned with Ministerial intervention by Mr I consisting of a “To whom it may concern” letter said to be from and in the name of the Applicant claiming he would be taken into custody on return to Lebanon as he had not attended a court hearing. Attached was a document in Lebanese said to be of a court document requiring the Applicant’s attendance and a translation.
These documents do suggest some involvement on the part of the Applicant in action taken by Mr I after the Tribunal decision. There is also evidence of a letter dated 31 October 2014 addressed to the Applicant personally, notifying him that his application for Ministerial intervention had not succeeded.
Some five or six weeks later (on 11 December 2014), the Applicant asked the Tribunal for a copy of the CD and the decision. The Applicant did not explain this delay. He filed his application for judicial review on 30 December 2014.
Taking the Applicant’s explanation at its highest (notwithstanding my concern about the lack of clarity in his claims about when his relationship with his prior migration agent ceased and why), the explanation that he provides is based on his asserted ignorance of the Tribunal decision and of the time limit for judicial review applications. He seemed to claim generally that his original adviser, Mr I, omitted, perhaps negligently, to inform him of the Tribunal decision or to take the necessary steps on his behalf to commence proceedings for judicial review within the time limit.
There is authority to the effect that relying on the alleged negligence of a migration agent does not satisfactorily “explain” the lateness of filing an application (see SZOCH v Minister for Immigration and Citizenship [2010] FCA 887 and SZLIH v Ministerfor Immigration and Citizenship [2009] FCA 108). In this case negligence has not been established but, in any event, even if the Applicant did not know about the Tribunal decision he has not explained why he took no action to seek judicial review or otherwise (such as asking his agent for advice) before 11 December 2014, even after he was informed by letter of 31 October 2014 that his application for Ministerial intervention had failed.
The Applicant also referred to the Compliance Section of the Department in his application. However, contrary to the First Respondent’s submission I am not of the view that the Applicant’s claim in his application about the Compliance Section of the Department of Immigration is an attempt to shift some liability to the Department (which, on his claim, merely informed him he should depart Australia).
Even if the application for Ministerial intervention were to be seen as a partial explanation for the delay on the basis that the Applicant was following the legal advice of Mr I (who is described as a solicitor in the Courtbook) (despite his claim that he did not know about the letter to the Minister) there is an unexplained period of time between notification to the Applicant that his application for Ministerial intervention was unsuccessful and when he took steps to obtain the Tribunal CD and start proceedings in this court. There is not an entirely satisfactory explanation for the delay in commencing the proceedings. It is a substantial delay.
It is conceded that there is no particular prejudice to the Minister in any extension of time. From the Applicant’s perspective, were he not to obtain an extension of time, this may ultimately result in circumstances in which it was necessary for him to return to Lebanon where he maintains (notwithstanding the Tribunal decision) that he has a fear of harm. I also note and have had regard to the absence of a right of appeal from a decision to refuse an extension of time.
Critically, however, having regard to these factors and even if the explanation proffered was a satisfactory explanation for the delay, in this particular case the substantive ground is not reasonably arguable. It is doomed to fail. As Mortimer J pointed out in MZABP at [62]-[63] the interests of justice are not served by the grant of an extension of time to file an application that is not reasonably arguable and is destined to fail.
The ground in the application is as follows:
The Refugee Review Tribunal’s conclusion that I will not experience harm because I did not experience any trouble prior to leaving Lebanon is not reasonable and error (sic).
In considering the merits of the substantive application I have borne in mind the principles elaborated on by Mortimer J in MZABP referred to with approval by the Full Court on appeal, the remarks of Wigney J in SZTES and of Charlesworth J in AZAFX. It is important not to conflate the substantive merits of the application with the appropriate test for an extension of time.
I have, insofar as possible in circumstances where an Applicant is self-represented, assessed the merits of the proposed application by reference to the test of whether the grounds are reasonably arguable determined at a “reasonably impressionistic level” as referred to in MZABP at [62]-[63] and AZAFX at [39]-[49]. However, in circumstances where the Applicant is self-represented and bearing in mind the need to accord procedural fairness to any applicant before this court, I am of the view that it is appropriate to have regard not only to the ground as expressed (including any particulars), but also to all material before the court (in particular the Tribunal decision) to determine whether there is, on the material before the court, a ground that is reasonably arguable in the sense considered in the cases cited (see to the same effect SZVLE v Minister for Immigration and Border Protection [2016] FCCA 2509). I note that in written submissions the Minister took this approach, which I commend.
I also consider that where, as here, an applicant is self-represented, it is appropriate to ask the applicant (who may have had well-intentioned but not necessarily well-informed advice in the preparation of grounds of review), whether he or she has any other concerns with the Tribunal decision or procedures. Not infrequently, potentially arguable grounds emerge when such a question is put to an applicant. However no such arguable ground emerged in this case, either on the material before the court or from what the Applicant said.
The difficulty that faces the Applicant in relying on the ground in his application as pleaded is that it oversimplifies and is not an accurate representation of the basis for the Tribunal’s reasons for decision. It is necessary to refer briefly to the Tribunal decision in order to explain what I mean. In essence, the Applicant claimed to be at risk of harm if he returned to Lebanon because he was involved in providing humanitarian assistance to Syrian refugees displaced to Lebanon by the conflict in Syria. He also claimed to fear harm because of being caught up in sectarian violence and bombings in Lebanon and as a Sunni.
The Tribunal found, for reasons that it set out, that it was satisfied the chance the Applicant would suffer persecution or significant harm was remote. In reaching that finding, it had regard to the Applicant’s evidence, in particular at the Tribunal hearing. While it did find that he had not experienced any trouble prior to leaving Lebanon while he was engaged in distributing assistance to Syrians displaced into Lebanon by the conflict in Syria, it also had regard to other matters, in particular the absence of harm to others and independent country information. It also addressed other aspects of the Applicant’s claims in light of the evidence before it.
In other words, the premise for this ground (that the Tribunal’s conclusion that the Applicant would not experience harm was because he did not experience any trouble prior to leaving Lebanon) is not entirely accurate. In any event, even if this was the basis for the Tribunal’s decision, an intelligible justification would be apparent in the Tribunal having regard to the fact that an applicant had not experienced harm on its view of the evidence before it and having regard to what the applicant told it at a Tribunal hearing and hence not accepting that such applicant would experience harm because he or she had not experienced harm previously.
Had that been the way the Tribunal reasoned, it would not in its terms disclose legal unreasonableness in the sense considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 or Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; [2014] FCAFC 1 or otherwise.
Unparticularised, this ground does not raise an arguable case such as to support the grant of an extension of time. No further particularisation is available on the face of the Tribunal’s decision that would be capable of sustaining a justiciable ground, whether based on unreasonableness or otherwise.
Despite the inaccuracy of the ground as expressed, it is appropriate to address what might have been intended, having regard to the material before the court, while bearing in mind that a full hearing on the merits is neither desirable nor permissible. Even the most cursory review of the Tribunal’s reasoning reveals that it cannot be said that it is arguable that there is no evident and intelligible justification for its decision. In essence, the Tribunal was not satisfied the Applicant faced any real risk of harm, based upon available country information, the absence of harm to others and the Applicant’s concession at the hearing that he had not previously been harmed in Lebanon. Even on the most beneficial reading of this ground as a general concern about legal unreasonableness, it is not reasonably arguable.
I also asked the Applicant whether he had any other concerns about the Tribunal decision and/or procedures. He made it very clear that he disagreed with the Tribunal’s conclusion. However he did so in terms which also made it clear that he sought impermissible merits review. His disagreement with the Tribunal’s conclusions is not such as to establish a reasonably or sufficiently arguable ground of judicial review.
The Applicant’s case is not reasonably arguable and can be said to be destined to fail. In these circumstances and having regard to all of the circumstances, insofar as it is possible to do so on the material before me, I am not satisfied that it is appropriate in the interests of the administration of justice to grant an extension of time. The appropriate order is that the application for an extension of time be refused.
The Applicant has been unsuccessful. He should meet the costs of the First Respondent. He raised his unemployment. I take that to be an issue as to lack of funds. Such a matter may be taken into account by the Minister in determining when and how to seek to recover costs, but it does not warrant a departure from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent. The amount of costs sought is reasonable and appropriate in light of the nature of this and other similar matters.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 8 November 2016
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