Truong v Minister for Home Affairs

[2019] FCCA 1548

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRUONG & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1548

Catchwords:
MIGRATION – Australian Human Rights Commission – application for an extension of time for the bringing of proceedings for review under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether the explanation for the delay in bringing proceedings was satisfactory – whether the application disclosed a reasonably arguable case on the merits – extension of time not required in the interests of the administration of justice – application dismissed.

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.11
Australian Human Rights Commission Act 1986 (Cth), ss.20, 46P, 46PO
Federal Circuit Court Rules 2001 (Cth)
Federal Court Rules 2011 (Cth)
Migration Act 1958 (Cth)

Cases cited:

Mary Lindsay v Christopher Rose, Registrar of the Immigration Review Tribunal and Susanne Tongue, Principal Member of the Immigration Review Tribunal [1996] FCA 1696

First Applicant: THI CAM HUYNH TRUONG

Second Applicant: LAM ANH TRUONG

Third Applicant: TIANNA TRUONG

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: AUSTRALIAN HUMAN RIGHTS COMMISSION

File Number: SYG 1160 of 2019

Judgment of: Judge Street

Hearing date: 6 June 2019

Date of Last Submission: 6 June 2019

Delivered at: Sydney

Delivered on: 6 June 2019

REPRESENTATION

Solicitors for the Applicant: Mr C Guan
ANZIA Immigration Lawyers

Solicitors for the Respondents: Mr J Hutton
AGS

ORDERS

1. The extension of time application will be determined today.

2. The First Applicant is appointed the litigation guardian for the Second and Third Applicants and the Court dispenses with the need for the filing of any further document in that regard.

3. The application for an extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) is dismissed.

4. The First Applicant pay the First Respondent’s costs fixed in the amount of $1,800.00.

DATE OF ORDERS: 6 June 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1160 of 2019

THI CAM HUYNH TRUONG

First Applicant

LAM ANH TRUONG

Second Applicant

TIANNA TRUONG

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

AUSTRALIAN HUMAN RIGHTS COMMISSION

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an extension of time for the bringing of proceedings for review under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the Act”). The decision of the Australian Human Rights Commission was made on 1 April 2019. The 28-day time period for the making of an application to either this Court or the Federal Court of Australia for review expired on 29 April 2019. The proceedings in this Court were not commenced until 10 May 2019.

2. The matter came before the Court on 6 June 2019. The response to whether the matter was ready to proceed in respect of the hearing of the application for an extension of time was that both parties were content for the Court to do so. The Court accordingly made an order that it would hear the application for an extension of time. During the course of the hearing, there was an adjournment to permit the first applicant to obtain further documents for the first applicant to tender in relation to the application.

3. The evidence before the Court is that the solicitor on the record for the applicants was the subject of instructions that were given by the first applicant on 25 April 2019. Mr Hutton on behalf of the first respondent correctly identified that there was no explanation for the delay by the applicants in approaching the solicitor on the record.

4. The evidence identifies that the solicitor on the record for the applicants did take steps to lodge a document by eFiling the same on 26 April 2019. On the evidence before the Court, however, it is apparent that whatever was the subject of the attempted lodgement on 26 April 2019 was not a form compliant with the requirements for the lodgement of an application for review to the Federal Circuit Court of Australia or the Federal Court of Australia. Rule 31.01 of the Federal Court Rules 2011 (Cth) identifies the substance of the requirements in respect of the form to be lodged which is that identified in Form 66. Rule 1.05 of the Federal Circuit Court Rules 2001 (Cth) identifies that the Federal Court Rules 2011 (Cth) have application insofar as the subject matter of the Federal Circuit Court Rules2001 (Cth) do not cover the same. Whatever was attempted to be lodged on 26 April 2019 was not a form that met the requirements of Form 66.

5. The application that has been filed by the applicants in this Court in respect of which there is an extension of time request also does not meet the requirements of Form 66.

6. There has also been tendered by the applicants a document that was the subject of an attempted filing on 2 May 2019. That document is, again, a document that does not on its face comply with the requirements of Form 66 but does identify grounds in the application.

7. The proposed grounds of the application are as follows:

   1. that the decision was not authorized by Article 17 under International Covenant on Civil and Political Rights (ICCPR) and Article 3 and 16 under the Convention on the Rights of the Children (CRC), scheduled and declared under the Australian Human Rights Commission in pursuance of which it was purported to be made;

   Particulars

   a.  The second respondent made no assessment on whether Ms Thi Cam Huynh Truong and her two children could be subjected to arbitrary or unlawful interference on their privacy, or to unlawful attacks on their honour and reputation.

   b.  The obligation to ensure that the best interests of a children as a primary consideration had been ignored.

   c.  The obligation to take all appropriate legislative and administrative measures to ensure the children such protection and care as is necessary for their well-being had been ignored.

   2. an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

   3.  that the decision was otherwise contrary to law.

8. The proposed grounds are consistent with the substance of the submissions advanced by Mr Guan as to why, at an impressionistic level, on the merits there is a sufficiently arguable case to warrant an extension of time.

9. The proposed grounds, in substance, identify in paragraph 1 an alleged ground of review falling within ss 5(1)(e) and (2)(b) of the Act. Proposed ground 2 reflects alleged error through ss 5(c) and (2)(g) of the Act. Proposed ground 3 reflects a ground of error under s 5(1)(j) of the Act.

10. The first applicant is the mother of the second and third applicants. The first applicant arrived in Australia on a temporary student visa in 2011. The second and third applicants are her children. The Court has made an order appointing the first applicant the litigation guardian for the second and third applicants.

11. The first applicant no longer has a visa entitling her to remain in Australia. The first applicant held a Bridging E (class WE) Bridging E (General) (subclass 050) visa which, on the evidence before the Court, expired on 28 February 2019. On the face of the evidence before the Court, the first applicant would become an unlawful non-citizen in Australia unless there has been an extension for the bridging visa.

12. The first applicant identified the nature of the relationships as a result of which the second and third applicants have been granted Australian citizenship.

13. It is apparent on the material before the Court that the decision of the second respondent not to intervene was made having taken into account submissions that were advanced by the first applicant addressing what were said to be the principles arising under the United Nations Convention on the Rights of the Children (“CRC”), in particular Article 3 in relation to the best interests of the children being a primary consideration in all actions concerning children, as well as submissions advanced under the International Covenant on Civil and Political Rights (“ICCPR”).

14. The application to the second respondent was purportedly made by way of complaint under s 46P of the Australian Human Rights Commission Act 1986 (Cth). That provision concerns a complaint in respect of unlawful discrimination. On 1 April 2019, the second respondent made the decision not to continue to inquire into the complaint pursuant to s 20(2)(a) of the Australian Human Rights Commission Act 1986 (Cth). The jurisdiction of this Court was thereby engaged and arises under s 46PO of the Australian Human Rights Commission Act 1986 (Cth).

15. The second respondent in its reasons referred to the fact that it was not contended by the first applicant that the removal of the first applicant from Australia was unlawful or would be unlawful as it is apparent that it would be pursuant to the Migration Act 1958 (Cth).

16. The first respondent identified the submissions that were advanced on behalf of the children and that the decision of the second respondent not to intervene has expressly taken into account the reference to the primary consideration, being the best interests of the children.

17. The second respondent was satisfied that the proposed removal of the first applicant is not inconsistent with or contrary to any human right under the ICCPR or the CRC. The decision of the second respondent expressly identified on page 7 that, if there was a view that the decision was not correct, the applicants had liberty to challenge the same and to seek to have the decision reviewed under the Act, and that the application must be made within 28 days of the decision, following which the second respondent had signed and dated the decision.

18. The principles in relation to an extension of time have been usefully summarised by the learned Branson J in Mary Lindsay v Christopher Rose, Registrar of the Immigration Review Tribunal and Susanne Tongue, Principal Member of the Immigration Review Tribunal [1996] FCA 1696.

19. The principles involve, first, whether there is a satisfactory explanation for the failure to bring the proceedings within the 28-day period. Whilst the Court accepts that the applicants’ solicitor properly endeavoured to take action for the bringing of proceedings, there is no explanation in respect of the delay until the time that the solicitor was instructed. Moreover, the document that was filed on 26 April 2019 on behalf of the applications clearly did not meet the requirements of Form 66 in seeking to pursue an application for review before this Court or the Federal Court of Australia, nor did the document attempted to be the subject of filing on 2 May 2019, nor did the document filed in this Court on 10 May 2019.

20. The applicants’ solicitor has provided an explanation in relation to steps sought to be taken by him upon receiving instructions. It is apparent that the rejection in relation to the non-compliant document filed on 26 April 2019 was not received until 1 May 2019. The document attempted to be filed on 2 May 2019 identified deficiencies with the attachments that were required under the rules. The document attempted to be filed on 2 May 2019 is the one that identifies the grounds to which the Court has referred and which does not meet the requirements of Form 66 in terms of identifying the specific grounds the subject of the application for review under the Act.

21. Nevertheless, there is, on the material before the Court, an explanation of steps being taken by the solicitor, after receiving the rejection on 1 May 2019, to endeavour to comply with the requirements for the pursuing of the application for review.

22. The prescribed period is an important requirement in respect of the time period for the making of such applications. Whilst there is no particular prejudice suggested to have been suffered in the circumstances of the present case, it is clear that the application that was required in accordance with the Rules was not made within the time required, nor was it made when the proceedings were commenced on 10 May 2019.  

23. In those circumstances, the Court is not persuaded that there is a satisfactory explanation for the delay when the applicants have not explained why no steps were taken to attempt to instruct a solicitor earlier than 25 April 2019, and in light of the absence of a document being filed that met the requirements within the time period.

24. It is, however, important to also take into account, at an impressionistic level, the merits of the substantial application in considering whether time should be extended. In that regard, Mr Guan, the solicitor on record for the applicants, has submitted that the decision of the second respondent was legally unreasonable, contrary to law and/or failed to take into account a relevant consideration, being the best interests of the children, as a primary consideration. Mr Guan identified the factual background in relation to the two children and the potential consequences of being separated from their mother if they do not accompany her overseas.

25. The process for the making of a complaint the subject of s 46P of the Australian Human Rights Commission Act 1986 (Cth) is one in respect of unlawful discrimination. There is nothing on the face of the material before the Court to support the complaint that the removal of the first applicant from Australia would constitute unlawful discrimination. The second respondent correctly identified the relevant considerations and whether or not the action of removal of the first applicant, in the circumstances where she has two children who are Australian citizens, could be said to be unlawful or arbitrary. The first respondent concluded that it could not be so said. At an impressionistic level, it is apparent on the face of the reasons of the second respondent that the contention as to the primary consideration, being the best interests of the children, was expressly referred to in the context of having been taken into account in the application for ministerial intervention.

26. The decision of the second respondent is not on its face, at an impressionistic level, one that no reasonable decision-maker could come to, nor, given the reasons provided, could it be said on its face, at an impressionistic level, to lack an evident and intelligible justification.

27. The Court is not persuaded, on an impressionistic level, in relation to the proposed ground 1(b), that there is a sufficiently arguable prospect of success to warrant an extension of time on the grounds of an alleged error under ss 5(1)(e) and (2)(b) of the Act.

28. In relation to proposed ground 2, the Court is not persuaded that there is a sufficiently arguable case of relevant error within ss 5(1)(e) and (2)(g) of the Act to warrant an extension of time. The Court also takes into account the first respondent’s submissions that the unparticularised nature of proposed grounds 2 and grounds 3 further undermine, at an impressionistic level, the same disclosing sufficient merit to warrant an extension of time. For the reasons already given, the Court is not persuaded that proposed ground 2 identifies a sufficiently arguable ground to warrant an extension of time.

29. Proposed ground 3, which seeks to raise s 5(1)(j) of the Act, asserts that the decision of the second defendant is otherwise contrary to law. The Court is not persuaded, at an impressionistic level, that this proposed ground is sufficiently arguable on the merits to warrant an extension of time.

30. Taking into account the explanation for the delay that the Court does not find to be satisfactory, and the want of merits in the substantive application, the Court is not satisfied that an extension of time is required in the interests of the administration of justice.

31. Accordingly, the application for an extension of time under s 11 of the Act is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  26 June 2019