WZAUG v Minister for Immigration
[2017] FCCA 771
•1 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAUG v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 771 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time to file judicial review application – factors for consideration. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.05 Migration Act 1958 (Cth), Div.4, Pt.7, ss.36(2), 65, 422B, 425, 474, 476, 477 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118; (2006) 88 ALD 304 |
| Applicant: | WZAUG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 170 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 30 June and 20 July 2016 |
| Date of Last Submission: | 20 July 2016 |
| Delivered at: | Perth |
| Delivered on: | 1 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr DV Blades (pro bono) |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the applicant’s application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) in which to file an application pursuant to s.476 of the Migration Act 1958 (Cth) be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 170 of 2014
| WZAUG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Under s.476 of the of the Migration Act 1958 (Cth) (“Migration Act”) the applicant made an application for judicial review (“Judicial Review Application”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) which affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to not grant the applicant a Protection (Class XA) visa (“Protection Visa”).
The Tribunal Decision is at Court Book (“CB”) 197-203.
The Judicial Review Application went through various iterations, and on 29 June 2016, the day prior to the first day of hearing, a Further Re-Amended Application was filed (“Further Re-Amended Judicial Review Application”).
Background facts
The background facts are as follows:
a)the applicant is a citizen of the People’s Republic of China (“China”), born on 25 September 1980: CB 43;
b)the applicant worked legally in Australia under a Temporary Business (Long Stay) subclass 457 visa, but overstayed that visa, which was cancelled on 1 February 2011: CB 18;
c)the applicant was detained in immigration detention on 12 September 2013: CB 131 and CB 198 at [3];
d)on 24 December 2013 the applicant applied for the Protection Visa: CB 43-75, which was refused by the Delegate’s Decision on 10 February 2014: CB 126-147;
e)on 17 February 2014 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 148-159;
f)on 1 and 23 April 2014 pursuant to s.425 of the Migration Act the Tribunal invited the applicant to a hearing: CB 164-167 and 170-172;
g)the hearing before the Tribunal was held, and audio recorded, on 30 April 2014 (“Tribunal Hearing”): CB 177-179. Further detail of the Tribunal Hearing and subsequent events prior to the publication of the Tribunal Decision are set out below: see [5]-[8] below. A transcript of the Tribunal Hearing (“Tribunal Hearing Transcript”) is in evidence before the Court: see the affidavit of Anjali Chopra, affirmed 15 October 2014 at Annexure A (“Chopra Affidavit”); and
h)on 9 May 2014 the Tribunal Decision affirmed the Delegate’s Decision to refuse the applicant the Protection Visa: CB 197 and CB 203 at [47].
Tribunal Hearing
The Tribunal Hearing was held on 30 April 2014: CB 177. The applicant appeared via video-link from Yongah Hill Immigration Detention Centre (“YHIDC”) and gave evidence and presented arguments in support of his application, with the assistance of a Mandarin interpreter: CB 177. The applicant had not provided any written documents to the Tribunal prior to the Tribunal Hearing. The applicant’s migration agent did not attend the Tribunal Hearing: CB 177.
At the Tribunal Hearing:
a)the Tribunal noted that documents provided by the applicant in respect to civil court proceedings in China indicated that the applicant’s parents had taken court action in relation to the detention of the applicant’s father and that the court had found in the father’s favour and awarded him compensation, which was confirmed by the applicant who also indicated that his mother had hired a lawyer to assist with the matter: CB 201 at [26];
b)the Tribunal put to the applicant that the capacity to sue and receive compensation from the Chinese government as a result of the father’s wrongful detention, done with the assistance of a lawyer, indicated that it was open to the applicant to hire a lawyer in relation to the applicant’s fear of being wrongly charged with murder, to which the applicant indicated that he was concerned about the circumstances in China, specifically that there was chaos, corruption, and that he believed he would be wrongly detained: CB 201 at [27];
c)the applicant confirmed that no arrest warrant had been issued for him in China, and said that that would not happen until the moment he was arrested: CB 201 at [28];
d)the applicant raised concerns as to the prevalence of corruption in China, and referred to several media reports in this respect: CB 201 at [30]; and
e)the applicant was concerned about the release of personal information by the Department of Immigration & Border Protection (“Department”) on the Department’s website, in relation to which there had been media reports in China, including an article referring to the incident and that the names of asylum seekers were briefly accessible on the Department website: CB 201 at [29] and [31].
At the conclusion of the Tribunal Hearing the Tribunal indicated that the applicant could make arrangements with the Tribunal Hearing attendant for the applicant to fax to the Tribunal documents which the applicant wished to provide to it: Tribunal Hearing Transcript, page 17. What was said at the Tribunal Hearing in this regard is important to the applicant’s case. The relevant passages of the Tribunal Hearing Transcript are as follows:
TRIBUNAL MEMBER: Okay. Now you have lots of documents there. Are you going to provide them to me? …Stop.
[… THE APPLICANT]: So yeah because it’s really dangerous for me to go back. I want to show you with these documents that how corrupted and dangerous the Chinese society is. People will do anything to gain interest like the ties between the officials – the government officials, and those merchants. They would do anything. They were trying to gain interest at any cost. So my case is really not that complicated. It’s…
TRIBUNAL MEMBER: I’ll definitely consider all of that. And what I will do is when I call in the Hearing Officer to close the roo…the hearing, I’ll see if we can organise to have some of those documents faxed through. So I can see that…
[… THE APPLICANT]: I do not know whether or not I meet the requirement of refugee definition but I really suffer – my life is threatened if I go back to China. That’s the truth.
TRIBUNAL MEMBER: I will consider…I will consider…I will consider that.
[… THE APPLICANT]: This is a result of the typical – The society in China – The pattern
TRIBUNAL MEMBER: Well, What I’ll do is call in the Hearing Officer – And to close the hearing. And I’ll ask about getting some of those documents.
[… THE APPLICANT]: The delegate said that the former information provided was not useful but they are true.
TRIBUNAL MEMBER: Mhm. There is the issue that in China there is a lot of document fraud. So one has to be careful about placing weight on documents…You need to stop so the interpreter can interpret.
[… THE APPLICANT]: You can send someone to get the information from my hometown. You will know that my family is quite famous there. We are doing well financially and yeah everyone knows us.
TRIBUNAL MEMBER: Okay now, the Hearing Officer’s come in to close the hearing but what we need to talk about is that he has documents over there that he wants to provide.
HEARING OFFICER: Okay.
TRIBUNAL MEMBER: Can you facilitate for somebody to fax them through or something? So we have that system?
HEARING OFFICER: We can I will, I can… I’ve got a contact number for the detention (indistinct)… so we can call…(indistinct) dialled into us I can probably just wait till about (indistinct).
TRIBUNAL MEMBER: So what the Hearing Officer’s is going to do is talk to somebody there and they’ll arrange which documents you want to fax to me. And I will have a look at those documents…Okay wait a minute for the interpreter.
[… THE APPLICANT]: I just provide this document to prove how chaotic Chinese society is.
TRIBUNAL MEMBER: I understand that and I will read country information about that in China. So I will think carefully over everything…
[… THE APPLICANT]: And there was information that was disclosed before that created further danger for me.
TRIBUNAL MEMBER: What information was disclosed?
[… THE APPLICANT]: There was a name that was published on the website for 8 days.
TRIBUNAL MEMBER: I will look at that.
(He speaks but appears not to be interpreted).
TRIBUNAL MEMBER: I noticed that they’d already prepared a document for you – that the Councillor General of the PIC in Sydney had already prepared a document for you to return to China. So no doubt they are aware of your circumstances.
INTERPRETER: He says about how the Chinese society has developed regarding law.
TRIBUNAL MEMBER: Okay, I’ll look at that. Thank you very much I’ll consider everything you have told me in the hearing today. And the Hearing Officer will get from you which documents it is that you want to provide to the tribunal. – Thank you. And thank you madam interpreter for a very good job and thank you. Thank you.
ASSOCIATE: The hearing has now concluded the time is 1.22pm. Member has left the room. I will now stop the recording.
Tribunal Hearing Transcript at pages 16-18 (Transcribed without amendment).
Events subsequent to the Tribunal Hearing
The events subsequent to the Tribunal Hearing in relation to the submission of documents by the applicant are also important to the applicant’s case. On the evidence before the Court those events were as follows:
a)at the hearing, the Tribunal did not set a timeframe for the provision of the applicant's documents, and following the hearing, on 1 May 2014, the applicant called Alicia Powell (“Ms Powell”), an officer of the Tribunal, to ask how much time he had after the hearing to provide submissions: CB 180;
b)Ms Powell told the applicant that “detention centre staff may be able to assist him to fax documents if he wished to send them to the Tribunal this way”: CB 180;
c)on 5 May 2014 the applicant’s migration agent Simon Sen Tao (“Migration Agent”) faxed a letter to the Tribunal requesting an extension of time until “by the end of the coming Friday” (which was 9 May 2014) to submit additional material in support of the application to the Tribunal for review of the Delegate’s Decision: CB 181 (“5 May 2014 Letter”);
d)on 5 May 2014, Ms Powell told the Migration Agent by telephone that the Tribunal member had directed that the applicant provide submissions by end of business on Friday 9 May 2014, and the Migration Agent “promised to provide submissions by the end of this date”: CB 182;
e)prior to 7 May 2014, the applicant provided to a Department case manager Helen Watson (“Ms Watson”) and/or another case manager Huong Nguyen (“Ms Nguyen”) documents for translation into English (“Applicant’s Documents for Translation”) and for forwarding to the Tribunal in support of his case: Affidavit of E.L.G. Tattersall sworn 20 June 2016 (“Ms Tattersell’s 20 June 2016 Affidavit”) at page 4, including a 6 page document in Mandarin language headed “RRT: 1402793”: Ms Tattersell’s 20 June 2016 Affidavit at pages 10-15;
f)on 7 May 2014 Ms Nguyen made a case note: Ms Tattersell’s 20 June 2016 Affidavit at page 4, as follows:
Rang RRT to enquire about standard protocol regarding applicant providing supporting documents in foreign languages. Was advised that the onus is on the applicant to provide a translation of the documents. I was also referred to Lucia(?), the Tribunal member who made a decision on … [the applicant’s] review. Lucia advised that on 5/5/2014, … [the applicant’s] migration agent requested additional time until 9/5 to provide additional document and the request was granted. Lucia advised that if … [the applicant] is not satisfied with the decision believing he was not given sufficient time to provide the translation of his document, there is a window of time of 28 days within the applicant may write to the registrar to object to the decision citing that the applicant was not provided with procedural fairness in that he required more time to provide the translation of his supporting document.
g)on 7 May 2014, the applicant wrote a letter to Ms Powell, Tribunal Officer in which he stated: “Here is my supply material. I'm looking for interpreter to translate into English. I asked Serco company to help me. But nobody help me. So I need couple day to translate, when I finish I will fax you as soon as possible”: Applicant’s 9 June 2014 Affidavit, Annexure B (“Applicant’s 7 May 2014 Letter”);
h)by facsimile letter dated 8 May 2014 (“8 May 2014 Letter”): CB 183, the Migration Agent provided the Tribunal with additional documents: CB 184-193 (“Applicant’s Additional Documents”), stating in his covering fax as follows (transcribed without amendment):
The client instructed me to provide the tribunal with additional documents in support of his merit review application.
Please refer to the attachments for the details of these documentations.
As the client specifically informed me that he would present arguments and evidence to the Tribunal by himself, I, hereby, solemnly declare that I did not assist the client in finding these documentations nor did I have any knowledge the contents of these articles.
i)on 9 May 2014, the last day of the period set by the Tribunal for the applicant to provide further documents in support of his case, the Tribunal Decision was made affirming the Delegate’s Decision: CB 197, which was notified to the applicant under cover of a letter dated 12 May 2014: CB 196;
j)on 15 May 2014, after the Tribunal Decision had been handed down on 12 May 2014, Ms Nguyen told the applicant that:
... there is still a window of time of 28 days within which an applicant may write to the RRT registrar to object the decision, as in his case when he felt that he was not afforded procedural fairness i.e. he required more time to provide translation of his supporting document. Suggested that he discuss this with his Migration agent. If the Registrar allows for him to provide further addition then this process will be a lot quicker than seeking Judicial review.
Ms Tattersell’s 20 June 2016 Affidavit at page 4.
k)on 15 May 2014, Ms Nguyen spoke to Bruce Fehlauer (“Mr Fehlauer”) of Serco about translation of the applicant's documents, stating “…[the applicant] provided some documents to Serco for translation and is still waiting to receive the translation.” Ms Tattersell’s 20 June 2016 Affidavit at page 5, first paragraph;
l)also on 15 May 2014, Ms Nguyen repeated to Mr Fehlauer the information that the applicant has the option to request the Tribunal Registrar to reconsider the decision: Ms Tattersell’s 20 June 2016 Affidavit at page 5, first paragraph;
m)also on 15 May 2014, Ms Nguyen told Mr Fehlauer that the applicant “therefore needs to receive the translation urgently”, and that she “Would much appreciate it if you could please follow up on the translation of … [the applicant’s] documents and let me know”: Ms Tattersell’s 20 June 2016 Affidavit at page 5, first paragraph;
n)on 16 May 2014, Jess Wade, on behalf of Yongah Hill Detention Operations emailed Ms Nguyen stating, in relation to translation of documents for the applicant: “Thank you for sending through the documents for translation. I spoke with Bruce Fehlauer who said that … [the applicant] had provided these documents for translation some time ago. Bruce attached these documents to a Serco Request form. Serco compliance then forwarded this request form to Detention Operations ....”: Ms Tattersell’s 20 June 2016 Affidavit at page 5, third paragraph;
o)on 19 May 2014 Ms Nguyen met with the applicant and made the following case note: “ ... advised him that the translation of his documents would be ready in the near future. Advised him that once the translation are ready, he will have the option to seek from the RRT Registrar within 28 days of the notification, an approval to lodge the translation for the RRT consideration as in his case he felt that he was not afforded procedural fairness during the RRT process. His other option is to lodge a judicial review. Explained to him that if the Registrar approves his request to submit the translation, it would be quicker and more cost effective. The applicant was happy with this news and said he would like to see the opportunity to lodge the translation with the RRT” Ms Tattersell’s 20 June 2016 Affidavit at page 5, fourth paragraph;
p)on 20 May 2014, Ms Nguyen emailed Ms Powell and said “ ... Thank you for speaking to me last week on 15/5/14 and explaining about the 28 day window during which an applicant may apply to the RRT Registrar for a reconsideration of the decision, should they feel that they were not afforded procedural fairness during the RRT decision making process. The translation of … [the applicant’s] documents should be available shortly. When the translation of the documents becomes available, … [the applicant] would like to apply to the Registrar for the opportunity to submit the translation for a reconsideration of the decision. I would therefore be grateful if you could please advise of the process to apply to the Registrar ....” Ms Tattersell’s 20 June 2016 Affidavit at page 6, first paragraph;
q)on 20 May 2014, Ms Powell rang Ms Nguyen and told her (as noted by Ms Nguyen): “ ...there is no avenue for reconsideration from the RRT and that the next step is judicial review if … [the applicant] was not satisfied with the RRT decision”: Ms Tattersell’s 20 June 2016 Affidavit at page 6, second paragraph;
r)also on 20 May 2014, Ms Nguyen met with the applicant and:
i)explained to him that his next “Court of action” was to seek judicial review from the Court and not an application to the RRT for reconsideration of the RRT decision as previously advised; and
ii)provided him with a copy of the translation of his document that she had received earlier in the day: Ms Tattersell’s 20 June 2016 Affidavit at page 6, third paragraph; and
s)also on 20 May 2014 the applicant asked Ms Nguyen for a letter to certify that the negative Tribunal Decision was the result of the delay in providing the translation, to which Ms Nguyen replied that as he provided the document to Serco, he could approach Serco for such a letter: Ms Tattersell’s 20 June 2016 Affidavit at page 6, third paragraph.
Tribunal Decision
In the Tribunal Decision the Tribunal indicates that the applicant claimed that:
a)he has significant debts owing to persons in China: CB 200 at [20]; and
b)there is widespread corruption in China, including (at least by inference) in the local judiciary: CB 200 at [20] and [21]; and
c)on a visit to China in December 2008 – January 2009 he became implicated in the death of a gang member who was endeavouring to intimidate the applicant and his workers in his river sand quarrying business, and that as the gang leader was related to the country magistrate, he fears that if he returns to China he will be arrested by the Chinese authorities, charged with murder and executed: CB 200-201 at [20]-[22].
In oral evidence to the Tribunal the applicant reiterated the above claims: CB 201 at [25].
In the Tribunal Decision the Tribunal’s findings and reasons were, relevantly, as follows:
a)the applicant did not claim that the charges, false or otherwise, would be instigated against him by reason of his race, religion, nationality, membership of a particular social group or political opinion and thus, the claim was without any Convention nexus: CB 202 at [35];
b)it was unable to discern a Convention nexus to the applicant’s claim that he would encounter financial difficulties on his return to China: CB 202 at [36];
c)lodging a Protection Visa application in Australia does not of itself give rise to a real chance that the applicant faces serious harm on return to China by reason of his membership of a particular social group such as a failed asylum seeker: CB 202 at [38];
d)it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there would be a real risk of the applicant suffering significant harm: CB 202 at [40];
e)it was not satisfied that the applicant is a person to whom Australia has protection obligations, and that the applicant did not satisfy the criteria under s.36(2)(a) or (aa) of the Migration Act for the grant of the Protection Visa: CB 203 at [46]; and
f)affirmed the Delegate’s Decision to refuse to grant the Protection Visa to the applicant: CB 203 at [47].
Proceedings in this Court
The applicant filed the Judicial Review Application on 18 June 2014. The Judicial Review Application was filed out of time. This issue is dealt with further below: see [16]-[69] below.
An Amended Judicial Review Application was filed on 16 October 2014 identifying five grounds of review, but by written submissions dated 8 June 2015 grounds 1 and 2 were abandoned and ground 5 was not pressed.
A Further Re-Amended Judicial Review Application was filed on 29 June 2016, and included further amendments to ground 4 and the particulars thereto, and included a new ground 4A.
The net effect of the various amendments is that the Further Re-Amended Judicial Review Application contains grounds 3, 4 and 4A as substantive grounds, the terms of which are set out further below: see [36] (ground 3), [50] (ground 4) and [62] (ground 4A) below.
Extension of time application
The terms of the Further Re-Amended Judicial Review Application include an application for an extension of time under s.477(2) of the Migration Act (“Extension of Time Application”). The grounds for the Extension of Time Application are as follows:
1.The delay is short (5 days).
2.The applicant does not speak English and was in immigration detention at the time of the decision.
3.The applicant was notified of the decision on 14 May 2014, five days after the decision was made.
4.The grounds of judicial review have strong merit, in particular the grounds relating to the fact that the applicant was given insufficient time to provide translations of the documents that he wanted to provide to the Tribunal.
Section 477(1) of the Migration Act requires that applications seeking judicial review of a Tribunal decision must be made within a 35 day period, unless time to make the application is extended pursuant to s.477(2) of the Migration Act. The application filed on 18 June 2014 is five days out of time.
Consideration of the Extension of Time Application
Procedural requirements
As outlined above, the applicant’s Judicial Review Application is 5 days out of time. Unless time is extended pursuant to s.477(2) of the Migration Act, the application is incompetent.
In WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 at [10] per Judge Lucev (“WZASQ”) this Court observed as follows:
10 Section 477(2) of the Migration Act 1958 requires that before the Court can make an order extending time:
a) there has to be an application for an order to extend time;
b) the application for an order to extend time must be in writing; and
c) the application must specify why it is that the applicant considers that it is necessary in the interests of the administration of justice to make that order. In context, this last requirement makes it clear that the application must be one made by the applicant, for it is for the applicant to specify why it is that it is necessary in the interests of the administration of justice to make an order extending time.
Rule 44.05(2) of the FCC Rules provides as follows:
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.
The applicant’s affidavit filed with the application on 18 June 2014 and sworn on 9 June 2014 (“Applicant’s June 2014 Affidavit”) contained no explanation for the delay. Nor did any of the subsequent affidavits filed by a solicitor (Ms Chang) then acting pro bono for the applicant. The Court notes that on 1 July 2015 the applicant filed an Amended Application in a Case seeking “… leave to file, by such date as the Court may stipulate, a supplementary affidavit explaining the arrangements for the dispatch of the facsimile letter and submissions annexed to his affidavit made 9 June 2014 filed 18 June 2014.”
On 27 July 2015 the Court ordered that the applicant “have leave to file a supplementary affidavit by 25 September 2015.” No supplementary affidavit was filed in accordance with the Court’s order of 27 July 2015, or otherwise. There is therefore no evidence before the Court which seeks to explain the reason for the delay or why it is in the interests of the administration of justice for time to be extended. It is a mandatory requirement pursuant to r.44.05(2)(c) of the FCC Rules that an affidavit explaining the delay be filed in support of an application for an extension of time in which to file an application under s.476 of the Migration Act, although compliance can be waived under r.1.06(1) of the FCC Rules: Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48 at [24] per Judge Lucev (“Sandan”). In this matter there is, however, no explanation whatsoever for the delay, adequate or otherwise. As was observed in SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 (“SZMWH”) the failure to provide an adequate explanation for the delay may, of itself, provide sufficient reason for the Court not to make an order extending time: SZMWH at [7] per Stone J. Nor was there any application under r.1.06 of the FCC Rules for dispensation from the effect of r.44.05(2)(c) of the FCC Rules.
In the circumstances, the Court does not consider that there has been any satisfactory explanation for the delay, or any reason as to why it would be in the interests of the administration of justice to grant an extension of time, put on affidavit in accordance with r.44.05(2)(c) of the FCC Rules, and given the mandatory nature of the requirement to do so, the failure to do so is sufficient to warrant the dismissal of the Extension of Time Application. Lest that conclusion be incorrect the Court will in any event consider the Extension of Time Application based on the usual factors for consideration of such an application.
Factors for consideration
The factors relevant to whether time should be extended in the present case are:
a)the length of the delay: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315;
b)the explanation for the delay: Baig v Minister for Immigration & Border Protection [2014] FCA 855;
c)the prejudice to the Minister: Singh v Minister for Immigration & Citizenship [2013] FCA 813; and
d)the merits of the proposed appeal: SZNYE v Minister for Immigration & Citizenship [2010] FCA 500 (“SZNYE”).
Extent of delay
In considering the law with respect to the delay in making an application, and in particular an application which seeks prerogative relief of the kind sought under the Migration Act, the Court must have regard to the judgments of the High Court in Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”). The relevant passages in those judgments of the High Court can, for present purposes, be summarised as follows:
a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
c)where a significant period of time has elapsed, and in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority at 553 per McHugh J.
The effect of delay in a case concerning prerogative relief from the decision of an administrative decision-maker was commented upon by the High Court in Marks at [16] per McHugh J in the following terms:
Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, “[t]he rules of court must prima facie be obeyed”. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
The delay in this case is relatively short. Even in the context of a case seeking prerogative relief from the decision of an administrative decision-maker a delay of five days would not necessarily weigh against an extension of time.
Reason for delay
The fact that the applicant is in immigration detention and does not speak English does not, of itself, explain the delay. The Court needs to be cautious in placing too much reliance on such matters lest too ready an acceptance of them makes an extension of time the rule and not the exception on prerogative relief applications, contrary to what was said by the High Court in Brisbane South Regional Health Authority, CLR at 553 per McHugh J. Further, upon the expiry of the time for the issue of a writ against a decision of the Tribunal, the Minister has a vested right to retain the benefit of the Tribunal Decision: Marks at [17] per McHugh J.
Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J (“SZSDA”). 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…
SZSDA at [38] per Foster J, followed in MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [34] per Judge Jones and MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 at [15] per Judge F Turner.
It might be argued that the advice given to the applicant by Ms Nguyen misled the applicant as to when the Judicial Review Application was to be filed. There is however no evidence as to when, if at all, the applicant became aware of the time limit under s.477(1) of the Migration Act for the filing of the Judicial Review Application, or what steps, if any, he took to ascertain that time limit. The Court notes that the applicant became aware of the necessity to file a Judicial Review Application in this Court by at least 20 May 2014: see [8(j), (o) and (r)] above, and at that stage he still had 24 days in which to prepare and file the Judicial Review Application and an accompanying affidavit. There is no explanation as to the steps taken by the applicant during that period, although it is apparent that by at least 9 June 2014 he had prepared the Applicant’s 9 June 2014 Affidavit, noting that the latter was sworn on 9 June 2014, four days before the time limit expired. The Court notes that the Judicial Review Application is signed by the applicant, but not dated.
There is also no explanation from the applicant as to the events concerning the arrangements made by the applicant for the filing of the Judicial Review Application and the Applicant’s 9 June 2014 Affidavit.
In the above circumstances, the applicant has not put on any evidence as to any explanation for the delay, and otherwise there is not sufficient evidence before the Court to explain why the delay ultimately occurred. The Court is therefore not persuaded that there is an acceptable reason for the delay in filing the Judicial Review Application.
Prejudice
Although the Minister does not contend that he would be prejudiced by reason of the delay, there must be some very minor prejudice by reason of the lapse of the limitation period and the expectation that there would be no Judicial Review Application filed. The mere absence of prejudice to a respondent can however never of itself justify the exercise of the discretion to extend time: Gill v Minister for Immigration & Border Protection & Anor [2014] FCCA 1929.
Merits
In determining whether the merits of the Judicial Review Application are arguable or have reasonable prospects of success, it is not necessary for the applicant to positively establish that the application will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”) (from which an appeal was dismissed: SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158), but it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6] per Mortimer J. In determining whether the grounds of review are arguable, reasonably arguable, or have reasonable prospects of success only requires the Court to deal with the grounds of review, and to examine them, in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of each of the grounds of review, the issue being not whether the applicant would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the grounds of review, reveals that the grounds of review, or any of them, might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their or its merit: SZTES at [48] per Wigney J; Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25] per Mortimer J.
In the above context the Court must bear in mind that the Tribunal Decision is only liable to be set aside on judicial review by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The Tribunal only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Consideration of ground 3 on Extension of Time Application
Ground 3 is as follows:
In relation to the applicant's claim that he faces harm from creditors unless he repays his debts, the Tribunal made a jurisdictional error by finding at [45] that the applicant had only made, in support of this claim, general comments about the existence of corruption, and that the applicant had not indicated how that circumstance engaged the complementary protection provisions.
In relation to ground 3 the applicant submitted that:
a)at CB 203 at [45] the Tribunal found that:
Over and above general comments about the existence of corruption the applicant has not indicated how this circumstance gives rise to substantial grounds for believing that on his return to China there is a real risk that he will be subject to significant harm.
b)the applicant's Protection Visa claims have always included the contention that he has been the victim of a conspiracy between corrupt officials who failed to protect him and his workers, and that if he were to return to China he faces a real risk that he will be charged with an offence or offences relating to the death of his associate, he will be convicted, and executed, as set out in the:
i)applicant’s personal declaration 29 October 2013: CB 79-83;
ii)Delegate's Decision: CB 134-135;
iii)Tribunal Decision at CB 200-201 at [20], [21], [25] and [27]; and
iv)Tribunal Hearing Transcript at page 14, lines 28-30 and page 15 lines 13-15, page 16, lines 21-25;
c)the applicant's claims referred to in the previous paragraph were that the corrupt officials were complicit in the course of events that led to him being accused of the offence;
d)the distinction apparently drawn by the Tribunal is that even if that is so, it does not show that the feared judicial process (criminal trial) would be affected by corruption. It appears the Tribunal is here relying upon the exception in s.36(2B)(c) of the Migration Act that the real risk he faces is one faced by the population of the country generally, not by the applicant personally;
e)however, in the supplementary submissions (Applicant's 9 June 2014 Affidavit attachment at [17], [19] and [20], especially what is apparently [19]) (‘Applicant’s Supplementary Tribunal Submisssions”), the applicant contends that the criminal trial and execution that he fears will actually be orchestrated by the corrupt officials who fear exposure of their activities should the applicant return to China but remain alive;
f)the Applicant’s Supplementary Tribunal Submissions provide the applicant's grounds for believing that corrupt officials are working in concert to ensure that if he returns to China he will be arrested, charged, convicted and executed;
g)the finding in the Tribunal Decision at CB 203 at [45] was not only in error, but reflects a failure to genuinely consider how the applicant had engaged the complementary protection provisions; and
h)this failing constituted a failure to perform the required statutory task: Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 (“MZYTS”).
The Minister’s submissions in relation to ground 3 were as follows:
a)ground 3 is misconceived;
b)in the Tribunal Decision at CB 200 at [20], the Tribunal identified that the claim for protection involved two aspects:
i)implication in a death and a fear of arrest and execution; and
ii)“he also claims that he has significant debts owing to persons in China”: CB 200 at [20];
c)in the Tribunal Decision at CB 201 at [25], the Tribunal again noted the applicant's oral evidence to the Tribunal dealt with both claims:
In his oral evidence to the Tribunal the applicant reiterated his claim that he feared returning to China because he believed he would be threatened by the PSB and held responsible for murder and would be sentenced to death. He also indicated that he had financial concerns as he had borrowed money and had difficulty repaying this money (emphasis added).
d)the Tribunal Decision at CB 202-203 at [40]-[44] deals with the first aspect of the claim for complementary protection. That included the finding at CB 203 at [43] that “whatever corruption may exist in terms of connections to people in positions of power it would not appear to be adverse to the applicant or his family”. The Tribunal made this finding on the basis that his parents, through the assistance of a lawyer, had successfully sued the local PSB for wrongful detention and mistreatment;
e)having reached those conclusions, the Tribunal moved on to consider the other aspect of the claim with respect to the applicant's debts: first sentence of CB 203 at [45]. It is in the context of this “circumstance”: see CB 203 at [45], that the Tribunal made the further observations with respect to general comments of the applicant about corruption: see Tribunal Hearing Transcript at page 16;
f)ground 3 fails to have regard to the Tribunal Decision in its entirety and if CB 203 at [45] is not read in isolation it is clear that the Tribunal did perform the required statutory task;
g)further and in any event, it is evident that the applicant did not provide the Applicant’s Supplementary Tribunal Submissions referred to in the applicant's submissions in relation to the ground to the Tribunal; and
h)no jurisdictional error arises with respect to ground 3.
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [45] per French, Sackville and Hely JJ (“WAEE”) the Full Court of the Federal Court observed that:
If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.
Another Full Court of the Federal Court in MZYTS at [34] per Kenny, Griffiths and Mortimer JJ said that:
[L]awful formation of that state of satisfaction [under s 65 of the Act] (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality …
and further at [62] per Kenny, Griffiths and Mortimer JJ that:
A failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal.
The immediately preceding quote from MZYTS is reflective of the fact that the Tribunal must consider all of the claims made by an applicant and all of the integers of those claims as articulated by the applicant: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244.
In WAEE the Full Court of the Federal Court said at [46]-[47] per French, Sackville and Hely JJ:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
It is to be observed that there is no evidence that the Applicant’s Supplementary Tribunal Submissions referred to in the applicant’s submissions above: see [37(e) and (f)] above, were ever before the Tribunal. The CB does not contain them. The Applicant’s 9 June 2014 Affidavit does not indicate how they were said to be before the Tribunal, and the email chain annexed to Ms Tattersell’s 20 June 2016 Affidavit as “ELGT-3” makes it plain that they were not before the Tribunal at any time prior to the Tribunal Decision.
The Tribunal Decision correctly identifies two primary claims made by the applicant, firstly, a fear of corrupt prosecution, conviction and execution in relation to the death of the gang member (“Death Claim”): CB 200 at [20], and, secondly, a claim that he has significant debts owing to persons in China: CB 200 at [20] (“Debt Claim”).
The factual matrix and claims made in relation to the Death Claim were fully set out by the Tribunal at CB 200-201 at [21]-[28] and dealt with in its findings and reasons at CB 202-203 at [40]-[44], and the limited factual context of the Debt Claim was referred to at CB 201 at [25].
The applicant’s submissions at [37(c)] above, in citing the Tribunal Decision at CB 203 at [45], fail to quote the first sentence of that paragraph which is as follows:
The applicant claims to be in debt and to owe people money in China.
The applicant’s submissions therefore deal with what follows (as quoted in the applicant’s submissions) without regard for its subject matter, which is the Debt Claim. In that respect the applicant’s submissions in ground 3 are, as submitted by the Minister, based on a misconception.
The Tribunal considered the evidence given by the applicant, identified the claims made, and made findings in relation to those claims, namely, the Death Claim and the Debt Claim. In the circumstances, the Tribunal was engaged in a fact-finding exercise with which this Court should not lightly interfere: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. In the circumstances, the Tribunal Decision leaves no room to infer that it failed to deal with either the Death Claim or the Debt Claim: WAEE at [47] per French, Sackville and Hely JJ.
For the above reasons ground 3 has no reasonable prospect of being made out, or of establishing jurisdictional error in the Tribunal Decision.
Consideration of ground 4 on Extension of Time Application
Ground 4, shorn of its particulars, is as follows:
The Tribunal, through acts of its own and of officers of the First Respondent's Department and Serco, failed to accord procedural fairness to the applicant, with the consequence that the Tribunal's decision of 9 May 2014 was made in excess of jurisdiction.
The particulars to ground 4 are essentially narrative, and for practical purposes, are reflected in the matters set out at [5]-[8] above.
The applicant’s submissions in relation to ground 4 were as follows:
a)it is well established that the denial of natural justice (or procedural fairness) to an applicant for a visa may result in a decision that exceeds jurisdiction for which prohibition will go: Minister for Immigration & Citizenship v SZIZO & Ors [2009] HCA 37; (2009) 238 CLR 627; (2009) 83 ALJR 1104: (2009) 259 ALR 405; (2009) 110 ALD 470 at [24] per French CJ, Gummow, Hayne, Crennan and Bell JJ; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300;
b)in Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118; (2006) 88 ALD 304 the Full Court of the Federal Court at [48] per Kenny and Lander JJ (with whom Spender J agreed) stated:
48 The Tribunal’s obligation under s 353(1) of the Act is related to the rule of procedural fairness that requires that a person in the position of the applicant in this case to have a reasonable opportunity to present his or her case: compare Minister for Immigration and Multicultural and Indigenous Affairs v WAFJ (2004) 137 FCR 30 ("WAFJ") at [68] per French J (dissenting in the result), [114] per Lee J, and [122] per RD Nicholson J; W360/01A at [2] per Lee and Finkelstein JJ; and R v Thames Magistrates’ Court, ex parte Polemis [1974] 2 All ER 1219 at 1223 per Lord Widgery CJ, with whom Ashworth and Bristow JJ agreed. In Polemis, the master of a ship, who was convicted of an oil pollution offence by a stipendiary magistrate, obtained a writ of certiorari setting aside the conviction because he was not given sufficient time to prepare his defence and was thereby denied natural justice. The rules of procedural fairness required that Mr Maltsin be given a fair opportunity to put his case. The Tribunal’s failure to have a genuine regard to his wishes concerning the oral evidence that it was to obtain and the apparent haste in which it set about obtaining oral evidence deprived him of this opportunity. This is not a case in which it should be concluded that the apparent breaches could have no bearing on the outcome of the hearing.
c)the denial of procedural fairness in the present matter resulted in a practical injustice to the applicant: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502; (2003) 72 ALD 613 at [37] per Gleeson CJ. The applicant was denied the opportunity to put written submissions and additional evidence before the Tribunal regarding his fear of serious harm and significant harm should he be returned to China;
d)the Tribunal expressly told the applicant that the Tribunal Hearing officer would get from the applicant the documents that he wanted to provide to the Tribunal after the Tribunal Hearing: Tribunal Hearing Transcript at pages 16-18;
e)the applicant telephoned the Tribunal after the hearing to ascertain the deadline for filing his further documents. He was told by the Tribunal that that deadline was Friday 9 May 2014;
f)the applicant tried to provide his further documents to the Tribunal by giving them to a Serco officer and to his Department case manager for translation and forwarding to the Tribunal;
g)at the same time, the Tribunal took no steps to ensure that the applicant had provided all of his supplementary documents to it prior to making the Tribunal Decision. Further, the Tribunal made its decision prematurely on 9 May 2014, the last day of the deadline, rather than after the deadline had expired. Accordingly, the applicant was denied procedural fairness by the Tribunal;
h)the Tribunal was not aware that the applicant had provided his case manager and Serco with documents for translation and forwarding to the Tribunal. These documents were not given to the Tribunal before it made the Tribunal Decision, however, this does not mean that the Tribunal Decision cannot be set aside on the ground of procedural unfairness: Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 76 ALJR 598; (2002) 187 ALR 117; (2002) 67 ALD 615 (“Bhardwaj”); Hot Holdings Pty Ltd v Creasey [2002] HCA 51; (2002) 210 CLR 438; (2002) 77 ALJR 70; (2002) 193 ALR 90; (2002) 70 ALD 314; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28; (2003) 37 AAR 309; and
i)the Department’s actions, as particularised, contributed to the Tribunal making a procedurally unfair decision that was in excess of jurisdiction. The Department’s officers positively misled the applicant as to the extent of his review rights with the Tribunal. The case manager believed on 7 May 2014 that the applicant had a window of time to write to the Registrar to object to the decision. The Department’s officers also failed to ensure that the applicant’s documents were translated and provided to the Tribunal before the given deadline; alternatively, they failed to take reasonable steps to liaise with the Tribunal and the applicant to ensure that he would be in a position to meet that deadline or to request an extension of it.
In relation to ground 4 the Minister submitted as follows:
a)by this ground the applicant contends that the Tribunal failed to afford the applicant procedural fairness;
b)that there was no error in the manner in which the Tribunal conducted its review, and there is no error with the Tribunal 's compliance with the procedural fairness obligations in Div. 4, Pt. 7 of the Migration Act;
c)given that Div. 4, Pt. 7 of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: Migration Act, s.422B, the applicant's arguments must be assessed against the relevant statutory requirements in Div. 4;
d)section 425 of the Migration Act requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the review. In this regard the Minister submits that the Tribunal:
i)invited the applicant to attend the Tribunal Hearing (CB 164-167) which he attended (CB 177);
ii)at the Tribunal Hearing the Tribunal discussed with the applicant its concerns (see for example CB 201at [27]-[29]);
iii)also provided the applicant with the opportunity to provide any further documents he wished to after the hearing;
e)in this matter, it cannot be maintained that the applicant was denied the opportunity to put written submissions and additional evidence before the Tribunal. In this regard, the available evidence indicates that:
i)it was confirmed on 1 May 2014, after the finalisation of the Tribunal Hearing, that the Tribunal was unable to provide the applicant with assistance to facilitate the provision of further evidence and that he may be able to seek assistance from detention centre staff or his migration agent: CB 180;
ii)on 4 May 2014, the applicant submitted a request to SERCO to prepare a translation of his handwritten document: Annexure I to the affidavit of Ellen Tattersall filed 28 June 2016;
iii)on 5 May 2014, the applicant, through his agent, requested and was granted an extension of time in which to provide further documents to the Tribunal by 9 May 2014: CB 181-182;
iv)following a meeting with Ms Watson on 7 May 2014, Ms Watson sent by email to the Migration Agent a copy of the untranslated document per the applicant's request: Ms Tattersall’s filed 20 June 2016 Affidavit at ; page 4
v)as at 7 May 2014, the applicant was aware that the requested translation had not been completed;
vi)the applicant did not, either personally or through his agent, make any further request for an extension of time to enable the translation to be performed and submitted to the Tribunal;
vii)the applicant, through his agent, submitted further evidence to the Tribunal on 8 May 2014, which did not include the translation or any reference to it: CB 183-193. Nothing in the correspondence suggests that the applicant wished to submit any further evidence or requested an extension of time in which to do so;
viii)it is not evident that the Tribunal made its decision prematurely, the Tribunal Decision is dated 9 May 2014 but contains no time at which the decision was made: CB 197. Accordingly, the applicant has failed to establish that the decision was made prior to the close of business on 9 May 2014 (being the deadline for the applicant's further material). In any event, the applicant did not submit any information between 8 May and his becoming aware of the decision on 14 May, and thus could not be said to have suffered any practical injustice: Annexure 2 to the affidavit of Ellen Tattersall filed 28 June 2016; and
ix)although some incorrect information was provided to the applicant on 15 May 2014: Ms Tattersall’s 20 June 2016 Affidavit at page 4, the applicant had been advised, on 14 May 2014, to seek judicial review of the Tribunal Decision if he believed there to be an error in the Tribunal Decision: Annexure 2 to the affidavit of Ellen Tattersall filed 28 June 2016. This information was further confirmed with the applicant on 20 May 2014 well before the period in which the applicant could lodge an application for judicial review expired: Ms Tattersall’s 20 June 2016 Affidavit at page 6;
f)the Tribunal was under no statutory obligation to liaise with the Department to confirm the applicant had provided all of the submissions he intended to file. Furthermore, the Tribunal's communication with the applicant on 1 May 2014: CB 180, had the effect that the applicant was under no misapprehension that the Tribunal would not make arrangements to obtain any documents itself. From the point of view of the Tribunal, the applicant, through the Migration Agent, had requested an extension to submit further documents and then had done so;
g)the issue that was considered by the High Court in Bhardwaj is not relevant to this matter. In Bhardwaj, an error was committed by the Tribunal by failing to bring to the member's attention a request by the applicant for a postponement of the hearing, which led to it affirming the decision under review in the absence of the applicant. A majority of the High Court held that the decision of the Tribunal was a nullity because of a denial of procedural fairness. However, in the present case, there was no error committed by the Tribunal in relation to the applicant's review application;
h)the actions of the Department in this matter did not lead to a denial of procedural fairness. In SZFDE & Ors v Minister for Immigration & Citizenship & Anor (2007) 232 CLR 189; [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 (“SZFDE – High Court”), the High Court at [47] expressly endorsed the dissenting judgment of French J (as he then was) in Minister for Immigration & Multicultural Affairs v SZFDE & Ors [2006] FCAFC 142; (2006) 154 FCR 365, 236 ALR 42, 92 ALD 1 at [101] per French J (“SZFDE”) stated:
What emerges from the authorities referred to above is that procedural unfairness, not attributable to a decision-maker, may arise in connection with the making of a decision when a person's exercise of the right to be heard before the decision is made, is compromised or lost through no fault of that person. That circumstance does not however establish a sufficient condition for a finding of procedural unfairness. Whether the decision is vitiated will depend upon the legal framework within which it was made, including any relevant statutory scheme, the content and effect of the decision, the extent to which the right to be heard has been affected or lost and the circumstances in which it has come to be affected or lost.
i)the Department was under no obligation to:
i)provide the applicant with a translation of the requested document; or
ii)confer with the Tribunal in relation to the provision of the applicant's evidence; and
j)the Department, through Ms Watson, sent the untranslated statement by email to the Migration Agent, whom the applicant had appointed an agent to be the authorised recipient on his review: CB 152. The Migration Agent replied to this email to acknowledge receipt of this document. After the request for the translation was made, the Migration Agent advised the Department that he had requested an extension on behalf of the applicant and advised the applicant of that extension: Ms Tattersall’s 20 June 2016 Affidavit at page 4. It is not apparent that the Department made any indication that it would liaise with the Tribunal or the applicant's representative in relation to the issue.
With respect to ground 4, alleging, essentially a failure to provide natural justice (or procedural fairness), the Court notes that:
a)the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in his case: CB 170-171;
b)the Tribunal received no written submissions from the applicant or his Migration Agent prior to the Tribunal Hearing;
c)the applicant attended the Tribunal Hearing and gave evidence with the assistance of a Mandarin interpreter: CB 177;
d)the Tribunal put to the applicant information that would comprise the reasons for affirming the Delegate’s Decision and invited him to respond: CB 201 at [26]-[28];
e)the Tribunal had before it such post-hearing submissions as were made to it by the applicant and the Migration Agent: see [8] above; and
f)in the Tribunal Decision the Tribunal identified and decided the claims made by the applicant: see [9]-[11] above.
The applicant was aware that post the Tribunal Hearing he would have some time to make further submissions, and on 1 May 2014 he made enquiries concerning how he could submit further submissions or documents to the Tribunal and was told by a Tribunal officer that the YHIDC staff may be able to assist him. This was exactly what the Tribunal had told him would happen: Tribunal Hearing Transcript at page 17. The Migration Agent 5 May 2014 Letter requested an extension of time until 9 May 2014 in which to make further submissions, and when that extension was granted the Migration Agent “promised” to provide submissions by that date. Thus, the 9 May 2014 deadline was one of the applicant’s choosing, and was one with which the applicant “promised” to comply. The Applicant’s 7 May 2014 Letter provided further documents to the Tribunal, and insofar as it indicated that further translation of other documents was required indicated that “couple day” was required, that is, until 9 May 2014. The substance of the Applicant’s 7 May 2014 Letter is consistent with the applicant’s chosen 9 May 2014 deadline for the provision of further submissions. Likewise the 8 May 2014 Letter, by which the Migration Agent provided further documents on behalf of the applicant, is consistent with the applicant’s self-imposed 9 May 2014 deadline for the provision of further submissions.
No further request for an extension of time beyond 9 May 2014 in which to provide submissions or documents was made by the applicant or on his behalf by the Migration Agent. With both the applicant and the Migration Agent having provided further submissions, nothing in the correspondence and discussions referred to above indicates, or could be taken as indicating, that the applicant had further submissions to provide or that he had further documents to be translated. The applicant placed reliance on the terms of the 8 May 2014 Letter as indicating to the Tribunal that the applicant had, or might have had, further submissions or documents to provide to the Tribunal. The difficulty with this submission is twofold. Firstly, it is not what the 8 May 2014 Letter says, and it cannot be inferred from the fact that the applicant said to the Migration Agent that he wished to present arguments and evidence himself, that there were necessarily further submissions or documents to be provided to the Tribunal, save as indicated in the Applicant’s 7 May 2014 Letter. Secondly, the fact that the applicant found the documents provided to the Tribunal by the Migration Agent does not of itself indicate that further submissions or documents might be provided by the applicant.
The Applicant’s 7 May 2014 Letter does not advance the applicant’s case further in this context. As indicated above: see [55] above, its content is consistent with the applicant’s self-imposed 9 May 2014 deadline for the provision of further submissions. Thus when on 9 May 2014 no further submissions or documents were provided by the applicant to the Tribunal, the Tribunal published the Tribunal Decision.
There was no statutory or other obligation for the Tribunal to do any more than it did in this case. Bhardwaj does not assist the applicant because in that case the request to seek an adjournment was not considered by the Tribunal, whereas here an extension of time was granted in which to provide submissions or documents, no further request for an extension of time was submitted, and there was nothing in the relevant correspondence between the Tribunal officers, the Migration Agent or the applicant which indicated that the extra time provided for the provision of submissions or documents was insufficient, and no request from the applicant, or his Migration Agent on his behalf, to seek a further extension of time. Here the applicant was afforded an opportunity to provide further submissions or documents. It was not for the Tribunal to ensure that the applicant made the best use of the opportunity afforded to him: Sullivan v Department of Transport (1978) 20 ALR 323; SXTDX v Minister for Immigration & Border Protection [2014] FCA 515 at [16] per Perry J.
It is also not to the point that the applicant may have been given erroneous advice on 15 May 2014 that he had 28 days in which to make an application to the Registrar of the Tribunal to further extend time. By that time the extension of time granted by the Tribunal to provide further submissions or documents had expired and the Tribunal Decision had been made. The fact that the applicant’s Departmental case officer had been given that advice on 7 May 2014 and did not pass it on to the applicant until 15 May 2014 does not constitute a denial of procedural fairness by the Tribunal, because what the applicant knew as at 7 May 2014 was that he had until 9 May 2014 to provide further submissions or documents to the Tribunal, and the applicant took no steps at that time, or until 9 May 2014, to enquire about or to seek a further extension of time.
This was a case to which s.422B of the Migration Act applied. The applicant was entitled only to the rights afforded him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified, nor is any evident on the materials before the Court. Rather, the applicant was invited to and attended, and gave evidence at, the Tribunal Hearing, and had matters which concerned the Tribunal put to him for comment. Further, the applicant was given the opportunity to make, and did make, post-Tribunal hearing submissions. Thereby, the applicant was afforded procedural fairness: Migration Act, s.425(1); SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300.
For the above reasons ground 4 has no reasonable prospect of being made out, or of establishing jurisdictional error in the Tribunal Decision.
Consideration of ground 4A on Extension of Time Application
Ground 4A and its particulars are as follows:
The Tribunal made a legally unreasonable decision.
Particulars
Subparagraphs (a) to (z) of Ground 4 are repeated.
As it did above: see [51] above, the Court again observes that the relevant particulars are essentially narrative, and for practical purposes, are reflected in the matters set out at [5]-[8] above
In relation to ground 4A the applicant submitted as follows:
a)the applicant asserts that the Tribunal made a legally unreasonable decision under the principles outlined by the High Court in Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181l (“Li”);
b)in Karki v Minister for Immigration & Anor [2013] FCCA 806 at [62] per Judge Lloyd-Jones (“Karki”), the Court found unreasonableness made out and stated:
In this matter the Tribunal determined that the applicant failed to satisfy one of the criteria at the time of the decision, set out in sub-clause 572.223 of Schedule 2 of the Regulations. Had the applicant been allowed more time by the Tribunal he may have satisfied the criteria at the time of the decision. The Tribunal refused a request to wait “a few weeks” in order to be able to provide the financial documents. When the applicant previously applied for a student loan he had experienced some problems in his home country relating to government officers, but he did receive, albeit too late, the necessary financial documents a few days after the delegate’s refusal decision. In the circumstances, this failure to allow an adjournment was so unreasonable that it constituted jurisdictional error. The Tribunal’s decision to refuse the adjournment, or alternatively provide additional time in which to lodge the financial documentation when received from Nepal was, in my view, affected by jurisdictional error. The matter ought to be remitted to the Tribunal for rehearing.
c)in the present matter, the Tribunal was aware that the applicant wanted to provide further documents to it after the Tribunal Hearing. The Tribunal told the applicant that the Tribunal Hearing officer would get from him the documents that he wanted to provide: Tribunal Hearing Transcript at page 18. The Tribunal did not initially set a deadline for the provision of the documents, but it did so after the applicant contacted it on 1 May 2014: CB 180;
d)the Tribunal did not take any steps to “get from” the applicant his documents. Rather, it told the applicant that “detention centre staff may be able to assist”: CB 180;
e)there was no reason for the Tribunal to believe that documents forwarded to the Tribunal by the Migration Agent annexed to the 8 May 2014 Letter constituted the sum total of the documents that the applicant wanted to submit post-Tribunal Hearing. The applicant had appeared by himself at the Tribunal Hearing without the Migration Agent, and the applicant had expressly told the Tribunal that he was going to provide the documents. The Tribunal ought to have checked with the applicant whether he was going to file further documents himself before finalising the Tribunal Decision; and
f)the Tribunal made a legally unreasonable decision by finalising the Tribunal Decision on the last day of the time period set for the provision of the further documents (not after the expiry of that period), and by failing to take the promised steps to get the applicant’s documents from him.
In relation to ground 4A the Minister submitted as follows:
a)the Tribunal proceeding to make the Tribunal Decision on 9 May 2014 was not unreasonable;
b)that:
i)although the Tribunal originally noted that it would assist in obtaining the documents from the applicant it confirmed with the applicant on the day following the Tribunal Hearing that it was a matter for him to arrange for any documents to be provided to the Tribunal;
ii)the applicant, through his Migration Agent, requested an adjournment on 5 May 2014 and the Tribunal provided the applicant until close of business on 9 May 2014 to submit further documents; and
iii)the 8 May 2014 Letter did not indicate either that further documents would be forthcoming or that a further extension of time was requested;
c)in the absence of any request for an adjournment of the review the Tribunal proceeding to make the Tribunal Decision or not provide the applicant with a further extension of time to submit documents was not unreasonable: Li;
d)the relevant facts of this matter are therefore distinguishable from that of Karki; and
e)no jurisdictional error is revealed by this ground.
The relevant principles in relation to legal unreasonableness as explained by the High Court in Li and subsequently by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 (“Singh”) have been summarised by the Federal Court in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45 ]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Pandey at [41] per Wigney J.
In relation to ground 4A the Court repeats what was said above in relation to ground 4: see [54]-[59] above, and further observes as follows:
a) Karki is distinguishable as it involved a decision to refuse, wheras in this case the extended time simply expired without any request for a further extension: see [55]-[58] above;
b) that the Tribunal was not aware at the expiry of the extension of time on 9 May 2014 that the applicant still wanted to submit further documents, and no request to that effect had been made by the applicant: see also [55]-[58] above;
c) that the means of the Tribunal getting the relevant documents from the applicant was to be with the assistance of staff at YHIDC, and that this was made known to the applicant at the Tribunal Hearing and again on 1 May 2014, noting also that the applicant continued to be represented by the Migration Agent he had appointed and who continued to provide services to the applicant including the submission of documents to the Tribunal: see, for example, the documents annexed to the 8 May 2014 Letter;
d) that it was for the applicant to satisfy the Tribunal that a Protection Visa ought to issue: Migration Act, s.65;
e) that following the submission of the Applicant’s 7 May 2014 Letter and the 8 May 2014 Letter there was no reason for the Tribunal to believe that further documents were to be submitted to the Tribunal by the applicant: see also [55]-[57] above; and
f) there was no error by the Tribunal in, and nothing to preclude it from, publishing the Tribunal Decision once the applicant failed to provide any further submissions or documents by close of business on 9 May 2014, noting that there is no evidence that the Tribunal Decision was published before close of business on 9 May 2014.
In the above circumstances, there was nothing to prevent a Tribunal acting sensibly from publishing the Tribunal Decision on 9 May 2014, nor to prevent it from making the findings it made, and critically from affirming the Delegate’s Decision to not grant the applicant the Protection Visa, that being a rational and logical finding reasonably to be made by a Tribunal acting sensibly on the materials which were before it at close of business on 9 May 2014.
For the above reasons ground 4A has no reasonable prospect of being made out, or of establishing jurisdictional error in the Tribunal Decision.
Conclusion and orders
The Court has concluded that:
a)the length of the delay (5 days) in making the Judicial Review Application does not weigh against the grant of the Extension of Time Application;
b)but that the effect of the outcome of a consideration of the other relevant factors, namely, the failure to satisfactorily explain that delay, the prejudice to the Minister, and, importantly, the failure of the applicant to make out any proposed ground of review which has arguable merit which effectively means that the Further Re-Amended Judicial Review Application would have no prospect of success, means that the Court should not therefore exercise its discretion to grant the Extension of Time Application.
It follows that there should be an order that the Extension of Time Application under s.477(2) of the Migration Act be dismissed.
Because the Extension of Time Application has been dismissed it is unnecessary to make a further order that the Further Re-Amended Judicial Review Application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at 92 [43] per Foster J; WZASQ at [34] per Judge Lucev.
The Court will hear the parties as to costs.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 1 May 2017
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