WZASC v Minister for Immigration & Anor
[2013] FCCA 1452
•11 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZASC v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1452 |
| Catchwords: MIGRATION – Judicial review – protection visa – whether denial of procedural fairness. |
| PRACTICE AND PROCEDURE – Extension of time in which to file judicial review application. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.05 Migration Act 1958 (Cth), ss.476, 477(1) and (2) |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142; [2011] FCA 639 Golski v Kirk (1987) 14 FCR 143 Hamden v Secretary, Department of Human Services and Health (2013) 59 AAR 108; [2013] FCA 3 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | WZASC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 71 of 2013 |
| Judgment of: | Judge Lucev |
| Hearing date: | 24 September 2013 |
| Date of Last Submission: | 24 September 2013 |
| Delivered at: | Perth |
| Delivered on: | 11 October 2013 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the first respondent be amended to read “Minister for Immigration & Border Protection”.
That the applicant’s application under s.477(2) of the Migration Act 1958 (Cth) for an extension of time in which to lodge an application under s.476 of the Migration Act 1958 (Cth) be dismissed.
That the supporting statement filed 7 October 2013 be returned to its maker.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 71 of 2013
| WZASC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks to make an application[1] under s.476 of the Migration Act 1958 (Cth)[2] in relation to a migration decision made by the Refugee Review Tribunal,[3] and makes a further application under s.477(2) of the Migration Act for an extension of time within which to make the Substantive Application.[4]
[1] “Substantive Application”.
[2] “Migration Act”.
[3] “Tribunal”.
[4] “Extension of Time Application”.
The Substantive Application and Extension of Time Application were filed on 17 April 2013. The decision of the Tribunal was made on 12 December 2012,[5] and any application in relation to the Tribunal Decision should have been made within the 35 day period specified by s.477(1) of the Migration Act. The applicant is therefore 91 days out of time. Section 477(2) of the Migration Act provides, however, that the Court may order that the 35 day period be extended.
[5] Court book (“CB”) 149-168 (“Tribunal Decision”).
Background
The factual and procedural background to the matter is as follows:
a)the applicant is a citizen of Afghanistan, born on 31 December 1974 in the village of Dehmorda, Jaghori District in the Province of Ghazni. The applicant lived with his family in Dehmorda until 2001;[6]
[6] CB 51-52.
b)between 2001 and 2011 the applicant lived mainly at Quetta, Pakistan. The applicant arrived in Australia at Christmas Island by boat on 18 February 2012;[7]
[7] CB 3 and 15.
c)on 17 June 2012 the applicant made an application for a Protection Class XA Visa.[8] The applicant claimed that if he was returned to Afghanistan he would be killed by the Taliban because he was a Shiite and a Hazara;[9]
[8] “Protection Visa”.
[9] CB 1-54.
d)the applicant was interviewed by an officer of the then Department of Immigration and Citizenship[10] on 21 June 2012;[11]
[10] “Department”.
[11] CB 71.
e)on 7 August 2012 a delegate of the then Minister for Immigration and Citizenship made a decision refusing to grant a Protection Visa to the applicant;[12]
[12] CB 67 and 78 (“Delegate’s Decision”).
f)on 10 August 2012 the applicant applied to the Tribunal for review of the Delegate’s Decision;[13]
[13] CB 79-84.
g)by letter dated 22 August 2012 the applicant’s representatives made submissions to the Tribunal on his behalf;[14]
[14] CB 91–132 (“Applicant’s Tribunal Submissions”).
h)on 17 October 2012 the applicant appeared by video conference at a hearing conducted by the Tribunal;
i)on 12 December 2012 the Tribunal Decision affirmed the Delegate’s Decision not to grant the applicant a Protection Visa. The Tribunal advised the applicant of the Tribunal Decision by letters to the applicant and his representative dated 13 December 2012;[15]
[15] CB 146-148.
j)on 17 April 2013 the applicant filed the Substantive Application with this Court seeking judicial review of the Tribunal Decision under s.476 of the Migration Act. The Substantive Application included the Extension of Time Application.
k)the only ground specified in the Substantive Application is that:
1. The Tribunal denied me procedural fairness.
l)the ground in support of the Extension of Time Application is as follows:
I am in detention, have not had legal representation in my proceedings to date, and am finding it difficult to get legal advice about the FMC proceedings.
m)on 1 May 2013 the Court ordered the applicant to file and serve on or before 26 July 2013 any amended Substantive Application giving particulars of the ground, and any affidavits upon which he intended to rely at the hearing, including any affidavits supporting the Extension of Time Application; and
n)no amended Substantive Application or affidavits were filed and served by the applicant by 26 July 2013, or by the time of the hearing on 24 September 2013.
The Extension of Time Application
Statutory framework
Section 477(1) of the Migration Act provides that an application to this Court for a remedy to be granted in the exercise of the Court’s original jurisdiction under s.476 of the Migration Act in relation to a migration decision must be made to the Court within 35 days of the date of the migration decision, which in this case is the Tribunal Decision.
Section 477(2) of the Migration Act provides that the Court may order that the 35 day period be extended as the Court considers appropriate if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth)[16] provides that:
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought – the 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.
[16] “FCC Rules”.
General principles on extension of time
The factors the Court takes into consideration in deciding whether to extend the time limit under a provision such as s.477(2) of the Migration Act are well established in the federal courts,[17] and include the following non-exhaustive list of considerations:
a)the extent of the delay and the reason for the delay;
b)whether there is any merit in the application;
c)whether there is any prejudice to the respondents;
d)the impact on the applicant;
e)considerations of fairness as between the applicant and other persons otherwise in a similar position; and
f)the public interest.[18]
[17] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (“Hunter Valley Developments”).
[18] SZRUG v Minister for Immigration and Anor [2013] FCCA 142 at para.8 per Nicholls J and cases there cited (“SZRUG”). See also ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at 162-163 per Katzmann J; [2011] FCA 639 at para.88 per Katzmann J (“ActewAGL Distribution”); Collins v Department of Finance & Deregulation (No. 3) [2012] FMCA 860 at para.66 per Lucev FM; Hamden v Secretary, Department of Human Services and Health (2013) 59 AAR 108 at 117-118 per Besanko J; [2013] FCA 3 at para.35 per Besanko J, all referring to Hunter Valley Developments at 348-349 per Wilcox J.
Explanation for delay
In this matter the delay is 91 days. The delay, therefore, is substantial.
The applicant has not filed any affidavit explaining the reasons for the delay as required by r.44.05(2)(c) of the FCC Rules. In Comcare v A’Hearn[19] the Full Court of the Federal Court stated that although it was to be expected an explanation for the delay would normally be given, “there was no rule that such an explanation is an essential pre-condition”.[20] In this case there is, however, a rule, and the requirements of r.44.05(2) of the FCC Rules are mandatory because of the use of the word “must”.[21] The FCC Rules thus prescribe that there must be an explanation provided on affidavit as to the delay and as to why it is necessary in the interests of the administration of justice for the Court to grant an extension of time. In this case there is no affidavit and no such explanation and, hence, the legislatively prescribed criteria requiring an explanation and the necessity to demonstrate that it is in the interests of the administration of justice for the Court to grant an extension of time have not been met. On this basis alone the Extension of Time Application must fail.
[19] (1993) 45 FCR 441 (“A’Hearn”).
[20] A’Hearn at 444 per Black CJ, Gray and Burchett JJ.
[21] Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors (2010) 244 FLR 335 at 346-347 per Lucev FM; [2010] FMCA 932 at paras.35-40 per Lucev FM, and cases there cited.
Even without the mandatory requirements of r.44.05(2) of the FCC Rules, there is no satisfactory explanation for the delay. Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay.[22] As the Federal Court observed in SZSDA:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay….[23]
[22] SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at para.38 per Foster J (“SZSDA”).
[23] SZSDA at para.38 per Foster J.
Insofar as the Substantive Application asserts that the applicant is in detention, has not had legal representation, and has found it difficult to obtain legal advice, there is no evidence that the applicant is in any different a position to all of the other persons in immigration detention around Australia, the vast majority of whom file their judicial review applications under s.476 of the Migration Act with this Court within time.
In all of the above circumstances, the Court does not consider that, in any event, there has been any satisfactory explanation for the delay.
Prejudice to first respondent
The Minister does not assert that he has suffered any prejudice as a result of the applicant’s delay in making the Judicial Review Application.
The mere absence of prejudice is not, however, enough to justify the grant of an extension of time.[24]
[24] Hunter Valley Developments at 349 per Wilcox J; ActewAGL Distribution FCR at 163 per Katzmann J; FCA at para.88(d) per Katzmann J.
Merits of Substantive Application
It is well established that a court should not exercise its discretion to extend time to appeal, even for a short period, if an appeal has no prospect of success.[25] This principle applies to the Extension of Time Application.[26]
[25] SZQGO v Minister for Immigration & Citizenship (2012) 125 ALD 449 at 454 per Murphy J; [2012] FCA 177 at para.29 per Murphy J and the authorities there cited.
[26] SZSDA at para.39 per Foster J; SZRUG and the discussion of the merits of the grounds at paras.32-87 and the conclusion at para.88 per Nicholls J.
The applicant’s sole ground for the Substantive Application is that he was denied procedural fairness by the Tribunal. The ground is not particularised.
The Tribunal Decision demonstrates that the Tribunal had regard to:
a)the claims made by the applicant:
i)in his primary application documents;[27]
ii)at his interview by the delegate;[28] and
iii)at the Tribunal hearing;[29] and
b)the submissions made by the applicant’s representative and to the documents provided by the representative at the Tribunal hearing.[30]
[27] CB 152-153.
[28] CB 153.
[29] CB 153-158.
[30] CB 153-158.
In its findings and reasons the Tribunal considered each of the claims which had been made by the applicant, and dealt with them at some considerable length.[31] In circumstances where the Tribunal had regard to the claims made by the applicant at each stage of the administrative review process, but in particular the claims made to the Tribunal itself, and the applicant was given an opportunity to be heard both with respect to his claims and the Tribunal’s questions concerning his claims, which were put to the applicant during the course of the Tribunal hearing, there can be, in the absence of any particulars for this ground, no proper basis for a suggestion that the applicant was denied procedural fairness by the Tribunal.
[31] CB 158-167.
That the Tribunal preferred country information available to it over country information provided by the applicant’s representative does not demonstrate procedural unfairness. The Tribunal’s assessment of country information was part of the Tribunal’s assessment of the merits of the applicant’s claims, and is not a matter for review by this Court. There was clearly sufficient, and authoritative, country information which enabled the Tribunal to draw the conclusions that it did. The Tribunal understood the submissions which were put to it, and whilst it did not refer to every piece of evidence put to it by the applicant’s representatives, it was not necessary for it to do so. Procedural fairness is afforded by a consideration of the issues raised, in a proper way, and a denial of procedural fairness is not established merely because an administrative body does not refer to every piece of evidence or submission made in the course of the hearing and submissions before that administrative body, here the Tribunal.[32]
[32] Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259 at 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291-292 per Kirby J; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 579-580 per Gummow and Hayne JJ; [1999] HCA 14 at paras.195 per Gummow and Hayne JJ; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para.11 per Gray, Tamberlin and Lander JJ; WZAOZ v Minister for Immigration & Citizenship & Anor (2012) 134 ALD 572 at 589 per Lucev FM; [2012] FMCA 1139 at para.52 per Lucev FM.
There has been no breach of procedural fairness by the Tribunal. The applicant’s claim that he was denied procedural fairness by the Tribunal therefore has no prospect of success. On this basis alone it cannot be in the interests of the administration of justice that the Court grant the Extension of Time Application.
Other criteria generally
Whilst the impact on the applicant is a consideration in relation to the Extension of Time Application, and whilst the Court is sympathetic to the circumstances in which the applicant has found himself, that is still insufficient to explain the delay. Furthermore, it would be unfair to grant this applicant an extension of time in circumstances where other applicants have not been granted an extension of time in similar circumstances, and where future applicants in a similar position to the applicant are unlikely to be granted an extension of time based on the law as it currently stands. It would not, therefore, be in the public interest to make an exception for this applicant.
Post hearing filing
At the hearing of this matter on 24 September 2013 the Court reserved judgment to be delivered on 11 October 2013. There were no orders for the filing of further material. When orders were made on 1 May 2013 for the filing of further material by the applicant, allowing the applicant time to file an amended application and affidavits, including any affidavits in support of the Extension of Time Application, no such affidavits were filed. The Court has been informed that subsequent to the hearing a person, not being the applicant, or any legal representative on behalf of the applicant, filed a document on 7 October 2013 (which the Court has not read) which seeks to make a statement in support of the applicant. There is no indication that the supporting statement was served on the respondents. No application was made by the applicant, or by any person on his behalf, through the Registry to re-open the case. It is not apparent whether the applicant has authorised the filing of the supporting statement. The applicant had an opportunity to file affidavit material in support of his claim, and failed to do so. In all of the above circumstances, the Court considers that it would be inappropriate to have regard to the supporting statement. The Court has therefore not had regard to the supporting statement. The proper course is for the supporting statement to be removed from the file and returned to the person who made it. There will be an order to that effect.
Conclusion and orders
The Court has concluded that the Extension of Time Application is to be dismissed. There will be an order accordingly. It follows that the Substantive Application cannot be considered as it has not been made within time.
There will also be orders:
a)formally amending the first respondent’s name to “Minister for Immigration & Border Protection”; and
b)that the supporting statement filed on 7 October 2013 be returned to its maker.
The Court will hear the parties as to costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 11 October 2013
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