WZAUO v Minister for Immigration
[2017] FCCA 562
•29 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAUO v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 562 |
| 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), ss.36(2), 91R, 474, 476, 477 Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2 |
| Cases cited: Gill v Minister for Immigration & Border Protection & Anor [2014] FCCA 1929 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 |
| Applicant: | WZAUO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 239 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 29 July 2015 |
| Date of Last Submission: | 29 July 2015 |
| Delivered at: | Perth |
| Delivered on: | 29 March 2017 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr B Dube |
| For the Second Respondent: | Submitting appearance save as to costs. |
Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the second respondent be changed to “Administrative Appeals Tribunal.
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 |
PEG239 of 2014
| WZAUO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 11 August 2014 the applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal, made on 29 May 2014 (“Tribunal Decision” and “Tribunal” respectively). The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”), made on 27 March 2014 to refuse to grant a Protection (Class XA) visa (“Protection Visa”) to the applicant.
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 11 August 2014 is 39 days out of time.
Under s.477(2) of the Migration Act the applicant has applied for an extension of time in which to file the Judicial Review Application (“Extension of Time Application”).
Background to the Judicial Review Application
The background to the Judicial Review Application is as follows:
a)the applicant was born on 7 February 1985 in China: CB 16;
b)the applicant entered Australia on 10 July 2006 as the holder of a student visa (Subclass 573) (“Student Visa”), and was granted a number of Student Visas, the third of which expired on 10 September 2010, but which was cancelled for non-payment of fees from 3 September 2009, following which the applicant was able to obtain a further Student Visa on 30 September 2010, expiring on 1 December 2012, after which date the applicant remained in Australia and became an unlawful non-citizen: CB 76 and CB 115 at [10]-[11];
c)the applicant was apprehended by railway police in Victoria on 8 February 2014, found to be an unlawful non-citizen and taken into immigration detention on that date, and subsequently transferred to the Villawood Immigration Detention Centre: CB 76;
d)the applicant lodged the Protection Visa application on 4 March 2014: CB 4-31, stating that he belonged to the ‘China’ ethnic group and was ‘kind of Christian’: CB 17;
e)the applicant’s claims for protection were based on the following: “Australian government should protect young men who has dreams”: CB 34, and “the privacy breach incident may bring a lot of serious effects when I back to China”: CB 34. The applicant also stated that he came to Australia to study originally but stayed unlawfully for “nearly 14 months”, and that he “want to live in a fair, equal and people with compassion, since I was a kid”: CB 35-36. The applicant also stated that “the privacy breach incident which made by Immigration makes me in great danger. Everyone knows CCP is the only party who contorl all things in China. I am sure if I go back I will be put to a serious investigation and this will include all my family members. Also this kind of investigation will affect me in life time, such as get loans, promotion in my job and so on”: CB 36-38 (quotes transcribed from original without amendment);
f)on 19 March 2014 the applicant wrote to the Department of Immigration and Citizenship (“Department”) and expanded upon his claims, stating that he is a “free Chinese-English interpret in Villawood, I know lot of people’s PV cases. This includes their name, DOB, where they were born, the reason why they applied PV and other personal information. In those people, there are some Falungong members, Dalai Lama supporter, people who boycott of the 2008 Olympics or people who against CCP or Chinese government”: CB 59-60. The applicant further stated that “if Chinese government put me to political investigations, how can I keep those people’s secrets? Also, after I tell all the things I know about Villawood, am I still safe in China?”: CB 60 (quotes transcribed from original without amendment);
g)the applicant was interviewed by the Delegate on 17 March 2014: CB 54;
h)on 27 March 2014 the Delegate notified the applicant of her decision to refuse to grant him the Protection Visa: CB 62-85;
i)on 4 April 2014 the applicant lodged an application for review with the Tribunal: CB 87-92;
j)by letter dated 29 April 2014 the Tribunal invited the applicant to attend a Tribunal hearing on 23 May 2014: CB 101-102; and
k)the applicant attended the Tribunal hearing on 23 May 2014 and gave evidence and presented arguments in support of his application, with the assistance of an interpreter: CB 107-109.
Tribunal Decision
In the Tribunal Decision made on 29 May 2014 the Tribunal affirmed the Delegate’s Decision: CB 120 at [38]. The Tribunal found that:
a)there is country information that supports in a general way the applicant’s claims regarding there sometimes being persecution by Chinese authorities of those who engage in activities that are in opposition to the Chinese government, and that it is likely that on return to China failed asylum seekers will be questioned or interviewed, kept under surveillance or detained for a short period by Chinese authorities, and that that may impede a person’s further education prospects or employment prospects, especially in government roles: CB 117 at [21];
b)“not without some doubt”, the applicant was briefly filmed in April 2014 by Channel 7 news and that the news item was broadcast on its website, but did not accept that the applicant is identifiable from the news clip or the still photograph of the clip: CB 117 at [25];
c)even if the applicant were identifiable in the news clip, there is not a real risk or real chance that he will suffer harm amounting to significant or serious harm in China for this reason, given that he has no political or other profile in China: CB 117 at [25];
d)the applicant has informally assisted other detainees while in detention and that the applicant would therefore know details of other people’s claims for protection, but did not accept that there was a real risk or real chance that the applicant will suffer harm amounting to significant or serious harm in China from authorities for this reason: CB 118 at [26];
e)to the extent that the applicant is claiming that he could be harmed on return to his country by those detainees he helped with interpreting and translating when he was in detention in Australia because the applicant could report about their anti-Chinese government claims in Australia to Chinese authorities, that this claim is, at best, speculative, and, therefore, did not accept that there was a real chance or real risk that the applicant will face harm in China for that reason: CB 118 at [26];
f)the names of many immigration detainees were published and available on the Department’s website, and while the Tribunal had no information available to determine whether the applicant’s details were published, it was willing to accept that the applicant’s name was published and that it could have been seen by Chinese authorities, but did not accept that there is a real chance or real risk that the applicant will face serious or significant harm in China on his return for this reason on the basis that it did not accept that the Chinese authorities have an adverse interest in the applicant: CB 118 at [28];
g)having regard to country information accepted that the applicant will be questioned and interviewed and may be detained for a short period of time upon his return to China as a result of being a failed asylum seeker, and that this may adversely affect his future prospects in relation to employment, education and obtaining a loan, but did not accept that when looked at separately or cumulatively they will amount to serious harm for the purposes of the Refugees Convention or significant harm for the purposes of the complementary protection criterion: CB 119 at [30];
h)having regard to all of the available evidence, there is not a real chance that the applicant will face or suffer persecution in China from the Chinese authorities or from those detainees that he assisted in Australia while in detention, or from anyone else for a Convention reason: CB 120 at [32]; and
i)there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) of the Migration Act: CB 120 at [34].
On the above bases the Tribunal Decision affirmed the Delegate’s Decision to refuse to grant the applicant a Protection Visa: CB 120 at [38].
Extension of Time Application
Procedural requirements
As outlined above, the applicant’s Judicial Review Application is 39 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 requirements of r.44.05(2) of the FCC Rules are mandatory because of the use of the word “must”: Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104; FCR at 391 per Merkel J; WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [9] per Judge Lucev (“WZASC”). Therefore, absent dispensation from compliance with r.44.05(2) of the FCC Rules under r.1.06(1) of the FCC Rules, r.44.05(2) of the FCC Rules prescribes that there must be an explanation provided on affidavit as to:
a)the delay; and
b)why it is necessary in the interests of the administration of justice for the Court to grant an extension of time.
No affidavits have been filed by the applicant in support of the application for an extension of time. The applicant did file an affidavit with the Judicial Review Application, but it contains no explanation in relation to the failure to file the Judicial Review Application on time. The applicant was also given the opportunity by reason of orders made by a Registrar of the Court on 1 October 2014 (“October 2014 Orders”) to file and serve any affidavit containing additional evidence upon which it proposed to rely, but the applicant did not file any further affidavit.
In Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48 at [16]-[26] per Judge Lucev the history of amendments to s.477 of the Migration Act and r.44.05(2)(c) of the FCC Rules, and the enactment and amendment of the latter at the same time as related amendments to the Migration Act, was examined, and demonstrate that the purpose of those amendments was to provide the factual foundation upon which the Court can judicially determine whether or not to make an order extending time for an applicant to make an application under s.476 of the Migration Act, and that the interaction between s.477(2) of the Migration Act and rr.1.06(1) and 44.05(2)(c) of the FCC Rules appears to work in the following manner:
a)if an application for an order to extend time has been made in writing and specifies why the applicant considers that it is necessary in the interests of justice to make that order, and the Court is so satisfied, compliance with the requirement to file an affidavit under r.44.05(2)(c) of the FCC Rules may be dispensed with;
b)any waiver under r.1.06(1) of the FCC Rules of compliance with the requirements of r.44.05(2)(c) of the FCC Rules requires the Court to do what justice appears to require: Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 at [7] per Kiefel J; provided that there is rational basis upon which the discretion may properly be exercised: SZNPI v Minister for Immigration & Citizenship [2010] FCA 106 at [12] per Flick J, and bearing in mind that caution may be required before too readily departing from the requirements imposed by the FCC Rules: Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30] per North, Flick and Jagot JJ; SZTKB v Minister for Immigration & Border Protection [2014] FCA 653 at [14] per Flick J; and
c)the basis for dispensing with compliance in the absence of an affidavit might be established in circumstances where, for example:
i)the relevant facts concerning the extension of time application are the subject of a statement of agreed facts; or
ii)the relevant facts concerning the extension of time application are the subject of other agreements or concessions made at hearing; or
iii)an applicant is given leave to adduce oral evidence in relation to factual material relevant to an extension of time; or
iv)the alleged jurisdictional error is either established (as in SZTDM v Minister for Immigration & Anor (No. 2) [2013] FCCA 2060) or so likely to be successful as to negate the necessity for the Court to deal with factual issues ordinarily required to be determined on an application for an extension of time, for example, issues such as the explanation for the delay and prejudice to the respondent, subject to what was said by the High Court concerning the general principles in relation to extending time for prerogative relief applications, as to which see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”) and Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”).
The Court notes that there was no application to dispense with the requirements of r.44.05(2)(c) of the FCC Rules, and no obvious reason to grant a dispensation in relation to the necessity to specify why it is in the interests of justice to extend time for the filing of the Judicial Review Application.
In the Judicial Review Application the applicant suggests that the delay is occasioned by the time taken to be provided the relevant documents and forms with which to lodge his application. The Minister submitted there is nothing in the Judicial Review Application to indicate that the applicant made any attempt to file it within the 35 day time limit required by s.477(1) of the Migration Act. In any event, nothing in the Judicial Review Application specified why it is that the applicant considers that it is necessary in the interests of justice to extend time for the filing of the Judicial Review Application
By reason of the failure to file any affidavit material in support of the Extension of Time Application, and the failure thereby to meet a mandatory requirement in relation to the Extension of Time Application, that is to specify why it is necessary in the interests of justice to extend time for the filing of the Judicial Review Application, it follows that the Extension of Time Application must be dismissed.
Notwithstanding the view expressed above, the Court will nevertheless consider the Extension of Time Application having regard to the usual factors in considering 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 (“Hunter Valley Developments”);
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.
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, regard must be had to the judgments of the High Court in Marks and in 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, 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 excessive nature of the 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 judgments of the High Court in Brisbane South Regional Health Authority and Marks, applied by the Federal Court to a migration matter in SZOBL v Minister for Immigration & Citizenship [2012] FCA 824 at [35] per Gilmour J (dismissing an application to extend time to appeal where two years out of time), are binding on this Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ.
In this case, the delay is not insignificant. The delay is longer again than the existing limitation period, and would extend the period granted to the applicant in which to file the Judicial Review Application to 74 days, or more than 10 weeks, as against the existing 35 day (or 5 week) limitation period. In the context of a case seeking prerogative relief from the decision of an administrative decision-maker a delay of his length weighs against an extension of time.
Reason for delay
In the Judicial Review Application the applicant sets out what he says are the reasons for the delay as follows:
1.I don’t have lawyer helps me to prepare my documents. Also it is my 1st time to apply for federal court.
2.I only got this Migration Act application form from my immigration case officer. Also I fax my Migration Act application on 30th/06/2014 with my Decision from RRT & DIBP.
3.In YHIDC communication is hard for me. I don’t have my immigration case officer phone number fax number of YHIDC. After I faxed my 1st documents. I got a letter from court on 25/07/2014.
please see attachment for more reasons, Thanks.
(Transcribed from original without amendment).
In the attachment to the Judicial Review Application the applicant says as follows:
1.When I met my immigration case officer, he only gave me the Migration Act application form, and I faxed on 30th/06/2014. Also I got my RRT decision on 03rd/06/2014 by hand from my immigration case officer.
2.This is my 1st time to apply for court and I don’t have lawyer. All documents I prepared by myself. Thanks for court client services officer … [name deleted]. Under her advice I knew I need to fax Party Category Information, Court fees form and a letter from immigration to show I am in detention. And I faxed all those information on 1st/08/2014.
3.Communication is hard in YHIDC. For example, … [court client services officer name deleted] sent a letter to me on 21st/07/2014. I got on 25th/07/2014. Also after I faxed my second additional information on 1st/08/2014, but I got that fax on 05th/08/2014. Thus most of the time were just wasting on those things.
Here I am asking court administration to consider my extension time for court. I am really trying hard for that all the time. Also thanks for court client services officer … [name deleted] and registry officer can consider my application to extension. Thanks again for your time and help!
(Transcribed from original without amendment).
The submission by the Minister that there was nothing in the Judicial Review Application to indicate that the applicant made any attempt to file the Judicial Review Application within the 35 day time limit is not strictly correct. The applicant does say that he was given what he describes as “Migration Act application form” by his Immigration Case Officer which he “faxed on 30th/06/2014”. Precisely what was faxed, and to whom it was faxed, on 30 June 2014 is not in evidence because the applicant has failed to file an affidavit attesting to the matters referred to in the Judicial Review Application, or provide any further detail or documents. It would however appear that there was some communication between the applicant and someone in the Court Registry relevant to an application, and if the applicant’s version of events as described in the Judicial Review Application is correct, it would appear that what is said to have been faxed on 30 June 2014 was deficient, and that those deficiencies were not overcome until the final filing of this application on 11 August 2014.
The absence of affidavit evidence and a properly explained and documented chain of events make it very difficult to determine whether or not there is an adequate reason for the delay. The Court notes that there is no reason proffered for the delay between the alleged faxing of the “Migration Act application form” on 30 June 2014, about which there is no other evidence in any event, and the letter allegedly sent to the applicant on 21 July 2014 from the Court Registry. Given that the applicant was out of time on and from 3 July 2014 the Court would have expected that the applicant would have done something during this period to ascertain whether or not the application form that he says he faxed on 30 June 2014 had been received and accepted as lodged by the Court Registry. There is no evidence that he did so.
The fact that this is the first time the applicant has applied to the Court, and that he does not have a lawyer, does not, of itself, explain the delay, particularly in circumstances where it might be inferred that by reason of filing the application form on 30 June 2014 the applicant was aware that there was a time deadline. Similarly, the fact that the applicant is in immigration detention and receiving some assistance from his immigration case officer, does not, of itself, explain the delay. The Court needs to be a little 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.
In Marks at [17] per McHugh J the High Court observed as follows:
An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision.
In SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 the Federal Court observed as follows at [3]-[4] per Gyles J:
3 The first paragraph of the affidavit in support of the application is:
‘I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme. I was denied natural justice at the Federal Magistrates Court.’
4 That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.
In SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J the Federal Court observed that:
Finally, the applicant mentioned his lack of a solicitor. This was a matter raised before the federal magistrate but nothing the federal magistrate said about it reveals appealable error. There is no right to legal representation. Doubtless, the applicant might have had a better chance if he had been legally represented, but in a civil case procedural fairness does not require it: New South Wales v Canellis [1994] HCA 51;(1994) 181 CLR 309 at 329–331; Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 at [24]; Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J. Cf. SZNVW [2010] FCAFC 41; 183 FCR 575 at [30].
In MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev this Court observed that:
… there is no right to legal representation in migration proceedings in this Court. …
It follows therefore that the inability to obtain legal advice or legal representation in relation to the Judicial Review Application does not explain the delay in this case.
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.
Even if the Court makes some allowance for the fact that the applicant was in immigration detention, did not have a lawyer, and may not initially have known about the limitation period, it is plain that by 30 June 2014 the applicant was aware of the limitation period, but took no steps to ensure that whatever it was that was faxed on 30 June 2014 was sufficient. Ultimately, the small delays engendered by factors such as the applicant being in immigration detention, and being dependent upon the assistance of an immigration case officer, do not explain the not insignificant delay in the Judicial Review Application being filed.
In the above circumstances, the Court, albeit not without some doubt, is 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, the mere absence of prejudice to the Minister cannot of itself justify the exercise of the discretion to extend time: Gill v Minister for Immigration & Border Protection & Anor [2014] FCCA 1929; Hunter Valley Developments FCR at 349 per Wilcox J.
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. 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 an extension of time context, an assessment of the merit of the case is therefore relatively broad. It is nevertheless, these being proceedings seeking prerogative relief, necessary to bear in mind the effect of a limitation period such as that under s.477(1) of the Migration Act 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 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.
In the Judicial Review Application no grounds are identified by the applicant. Orders were made by the Court on 1 October 2014 allowing the applicant to file and serve an amended Judicial Review Application with particulars by 3 December 2014.
On 1 December 2014 the applicant filed a document headed “The particulars of each ground of review” which appears to set out six grounds of review following by particulars in respect of each of those six grounds. Those six grounds and particulars are set out and considered below: see [41]-[75] below.
Each of grounds 1 to 4 of the grounds of review, and the particulars thereto, refer to the Minister and the Department, and their actions in relation to the applicant’s claims. In that respect, the applicant appears to be seeking to have this Court review the Delegate’s Decision. This Court has no jurisdiction to review the Delegate’s Decision, which is a primary decision: Migration Act, s.476(2)(a) and (4). Further, and in any event, it is well-established that if the Tribunal Decision is not flawed, it cures any defect or irregularity in the Delegate’s Decision: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J.
Ground 1
Ground 1 of the Judicial Review Application and its particulars are as follows:
1. Both Minister for Immigration and Border Protection and Refugee Review Tribunal have denied me procedural fairness by failing to provide adequate reasons for the finding of fact.
Form the Tribunal decision record shows the Tribunal accepts my details were published on the Department of immigration and Border Protection’s website, even this happened still no real risk for me to go back China. Thus the Tribunal did not use facts to give the correct judgment on my appeal.
(Transcribed from the original without amendment).
In relation to the privacy breach the applicant claimed that:
a)he and his family would be investigated; and
b)the investigations would affect his employment, educational and financial opportunities as he would be identified as having been in detention, and having been, a failed asylum seeker: CB 118 at [28].
The Tribunal:
a)accepted that the names of many immigration detainees were published or available on the Department’s website; and
b)for the purposes of the Tribunal Decision, further accepted that the applicant’s name was on the list published by the Department.
The Tribunal considered all of the applicant’s claims, as it was obliged to do: 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, and made factual findings which included the following:
a)that country information suggested that there was some persecution by Chinese authorities of those engaged in activities “in opposition to the Chinese government”, and that failed asylum seekers are questioned or interviewed, kept under surveillance or detained for a short period of time by Chinese authorities: CB 117 at [21], and whilst those matters may have some adverse effect on the applicant and his future employment, education or ability to obtain a loan, the Tribunal did not consider that this amounted to serious or significant harm, for either the applicant or his family, and in respect of the applicant’s family not accepting that the family would be investigated; or that if they were, that it would amount to serious or significant harm for relevant purposes: CB 119 at [30];
b)that the applicant would not face serious or significant harm should he be identified as an asylum seeker upon return to China as, according to his evidence, he has no political or other profile in China: CB 117-118 at [25];
c)considering the applicant’s claim that he would face harm for assisting other detainees was, at best, speculative: CB 118 at [26]; and
d)accepted that the Chinese authorities would know that the applicant had been detained in Australia, having come to Australia to study and been detained in immigration detention because he did not have a visa to continue to stay in Australia, and that the Chinese authorities may well assume that the applicant claimed asylum in Australia so that he could permanently remain in Australia: CB 119 at [29], but that this did not mean that he would be of adverse interest to authorities in China for those reasons as many Chinese citizens detained in Australia overstay their visas, and did not accept that the applicant would be treated differently because he would be identified from the news video or because of his activities in assisting detainees in detention in Australia: CB 119 at [29].
In relation to the privacy breach the Tribunal, having accepted the matters set out at [43] above, found that:
Given his claims however, the Tribunal does not accept that there was a real chance or real risk that this applicant will face serious or significant harm in his country on return there for this reason. In the case of this applicant the Tribunal does not accept that Chinese authorities have, or will have an adverse interest in the applicant if he returns to his country from Australia.
CB 118 at [28].
The reference to the claims made by the applicant makes it apparent that the Tribunal’s consideration and finding in this regard had regard to its conclusions and findings with respect to the applicant’s claims. In those circumstances, and in circumstances where the Tribunal had found that the applicant was not a person of interest to the Chinese authorities by reason of any activities adverse to the Chinese government, the finding made by the Tribunal with respect to the privacy breach was plainly open to it. In that respect, ground 1 is, ultimately, no more than a plea for this Court to impermissibly review the Tribunal’s fact-finding, a task which is not one that the Court undertakes on judicial review under the Migration Act: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). As such, ground 1 has no reasonable prospect of being made out or of establishing jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 of the Judicial Review Application and its particulars are as follows:
2. Both Minister for Immigration and Border Protection and Refugee Review Tribunal have bias against me as I was deprived of the benefits of doubts.
Both the Department and the Tribunal have prejudgement on my PV case. Especially when I were in the Tribunal interview, the Tribunal member kept to ask me one question which was why I can not return to China as a overstayed student.
(Transcribed from the original without amendment).
Any questions asked by the Tribunal of the applicant concerning his overstaying his Student Visa, and the inter-relationship between the overstaying and the claims for protection, were relevant matters for the Tribunal to consider in determining whether or not to affirm the Delegate’s Decision: see CB 115 at [10]; CB 116 at [20], CB 117 at [23] and CB 119 at [29]. The Tribunal specifically put the matter of the applicant overstaying his Student Visa in the context of other Chinese citizens who had overstayed their visas and why it would be that the applicant would be seen differently and be of adverse interest to the Chinese authorities if returned: CB 119 at [29]. The Tribunal’s questions in relation to the applicant overstaying his Student Visa and his fear of returning to China do not therefore establish error in the Tribunal’s reasoning process. The Tribunal must identify the material that it finds relevant to its reasoning, and it is for the Tribunal to give that material appropriate weight: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ.
Bias is a serious allegation, which must be firmly and distinctly made and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J (“Jia Legeng”). There must be evidence which demonstrates that:
a)the Tribunal member had a pre-existing state of mind which disabled him from undertaking, or rendered him unwilling to undertake, any proper evaluation of the relevant materials before him which were relevant to the decision to be made: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or
b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member may not have brought an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
There is no evidence to support the allegation of bias in this case. There is nothing to suggest that the Tribunal prejudged the applicant’s case. Nor is there any evidence that “the Tribunal kept to ask me one question which was why I cannot return to China as a overstay student”. The applicant asserted this, but did not file a transcript of the Tribunal hearing to support the assertion made in the particulars to ground 2 and again at hearing. Moreover, the Tribunal was, for reasons set out above, entitled to press that issue with the applicant, and receive a response, which it plainly did: CB 119 at [29]. The applicant has failed in the Court’s view to make out any basis for bias on the part of the Tribunal in this case.
In the circumstances, ground 2 has no reasonable prospect of being made out, or of establishing jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 of the Judicial Review Application and its particulars are as follows:
3. Both Minister for Immigration and Border Protection and Refugee Review Tribunal have made an offensive finding based on no evidence.
My father is a senior accountant and a member of the CPP, but there is no any evidence can shows my father can give me a good protection. Also I never involved in any political activities or political parties who are against the Chinese government before I entered Villawood IDC. I made a very clear statement on this, but both the Department and the Tribunal still ignore those facts, and assumed my father can give me protection.
(Transcribed from the original without amendment).
The Tribunal did not make a finding that the applicant’s father could give him protection. The Tribunal noted that the applicant’s father is a senior accountant with a State construction enterprise and a member of the Chinese Communist Party: CB 117 at [25]. The Tribunal considered the father’s role in relation to the applicant’s:
a)perceived political profile; and
b)claim that his family would be investigated because of him: CB 119 at [30],
but not otherwise.
Ground 3 has no reasonable prospect of being made out in its terms, or of establishing jurisdictional error in the Tribunal Decision.
Ground 4
Ground 4 of the Judicial Review Application and its particulars are as follows:
4. Both Minister for Immigration and Border Protection and Refugee Review Tribunal have ignored the mistakes which made by Immigration PV case officer.
From the decision record of the Department of Immigration and Border Protection, there were lots of mistakes of the Fact Finding. The Refugee Review Tribunal ignored those mistakes and did not consider all the fact on my case, because the Tribunal only said, “It also discussed with the applicant several errors which he identified in the delegate’s decision record.”
(Transcribed from the original without amendment).
The fact that the “Immigration PV case officer” made mistakes of fact does not assist the applicant. That is particularly so in circumstances where the Tribunal discussed the errors which the applicant said he had identified in the Delegate’s Decision, as the Tribunal said it did: CB 116 at [16]. In any event, it is plain that the Tribunal identified the many claims made by the applicant: CB 116 at [20], and went on to make a determination on the facts, having regard to the applicant’s claims, the evidence before it (which included country information), and having regard to those facts made findings and an ultimate determination that the applicant did not have a well-founded fear of persecution within the meaning of the Refugees Convention and that there was not a real risk that he would suffer significant harm for the purposes of the complementary protection criterion: CB 120 at [32]-[37].
The Tribunal has not ignored the mistakes which the applicant alleges were made by the Immigration PV case officer, but rather, as it was entitled to do, and obliged to do, considered the applicant’s claims and arrived at its own conclusions based on the material before the Tribunal.
In the circumstances, ground 4 has no reasonable prospect of being made out, or of establishing jurisdictional error in the Tribunal Decision.
Ground 5
Ground 5 of the Judicial Review Application and its particulars are as follows:
5. The Refugee Review Tribunal have ignored the evidence which I handed to.
On 23 May 2014, I sent the news report from Channel 7. However the Tribunal member said, “The Tribunal does not accept that the applicant is identifiable from the video or the document that the applicant produced to the Tribunal.”
(Transcribed from the original without amendment).
Ground 5 alleges that the Tribunal ignored the Channel 7 news report from which the applicant says he can be identified.
The Tribunal referred to the applicant’s claims in relation to the news report at CB 116 at [18] and [20] and at CB 117 at [25]. At CB 116 at [18] the Tribunal refers to its receipt of and viewing of the news report, in the following terms:
18.Following the Tribunal hearing the applicant faxed the Tribunal a document in support of his claim that authorities in China will harm him in his country because they will know that he has been in detention/claimed asylum in Australia. He claims that media coverage of asylum seekers being transferred from Villawood to interstate detention centres shows him on a news video when he was being transferred at the airport on 5 April 2014; he said that he is the person in the middle walking with a stick. The document sent to the Tribunal by the applicant is a still of the video clip and at the applicant’s request the Tribunal watched the video clip referred to in the document which the applicant claims clearly identifies him.
At CB 116 at [20] the Court notes the claim by the applicant in the following terms:
The applicant also claims that in April 2014 he was filmed by Channel 7 news being transferred as an asylum seeker from Villawood detention centre; this video was part of a news item about violence at Villawood and it is on the Channel 7 news website. The applicant claims that he can be clearly identified as an asylum seeker.
There is no dispute that the applicant was in Villawood detention centre until April 2014 when he was transferred to an immigration detention centre in Western Australia: CB 117 at [24].
The Tribunal made a finding of fact that the applicant was not identifiable from the news report in the following terms:
Not without some doubt about the matter the Tribunal accepts that the applicant was briefly filmed in April 2014 by Channel 7 news and that the news item was broadcast and is on the Channel 7 website. The Tribunal watched the video as the applicant requested. The Tribunal does not accept that the applicant is identifiable from the news video clip or the document that the applicant produced to the Tribunal.
CB 117 at [25].
Not only has the Tribunal not ignored the news report evidence provided by the applicant, it has considered it and made findings of fact plainly open to the Tribunal on the evidence that it reviewed. It is not for this Court to re-determine the facts, and no jurisdictional error arises where a factual finding of this type was open to the Tribunal: Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The finding made by the Tribunal that the applicant was not identifiable from the news report was ultimately inconsequential as the Tribunal went on to consider the applicant’s risk of harm as if he were able to be identified from the news report, and, by reason of the applicant’s low political profile and his being of no adverse interest to the Chinese authorities, determined that it was not satisfied that he had a well-founded fear of persecution for Convention reasons or substantial grounds for believing that there was a real risk that he would suffer significant harm for complementary protection purposes, if returned to China. Thus, the finding made that the applicant was not identifiable from the news report made no difference to the ultimate outcome of the Tribunal Decision.
It follows that ground 5 has no reasonable prospect of being made out, or of establishing jurisdictional error in the Tribunal Decision.
Ground 6
Ground 6 of the Judicial Review Application and its particulars are as follows:
6. There is some mistakes made by the interpreter.
When I was in the Tribunal’s interview, the interpreter did not interpret the actual meaning of what I need to tell the Tribunal. Also she added some statement which I did not make.
(Transcribed from the original without amendment).
In Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231 (“Perera”), the Federal Court made the following findings in relation to a decision of the Refugee Review Tribunal:
a)a failure by the Tribunal to provide a competent interpreter to assist a non-English speaking applicant for refugee status may constitute a ground of review within s.476 of the Migration Act;
b)a failure by the Tribunal to provide an interpreter to a non-English speaking applicant means that the Tribunal does not have the jurisdiction to conduct the hearing: Perera at [21] per Kenny J;
c)the role of an interpreter is to “place the non-English speaker as nearly as possible in the same position as an English speaker…to remove any barriers which prevent or impede understanding or communication”: Perera at [24] per Kenny J;
d)“[i]nterpreting reliably involves technical skill and expert judgment”: Perera at [25] per Kenny J;
e)the standard of interpreting required is subject to criteria of “continuity, precision, impartiality, competency and contemporaneousness” and a summary of what is said or omitting passages of what is said is not acceptable: Perera at [28] per Kenny J;
f)the interpreter must “express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language”: Perera at [29] per Kenny J;
g)the relevant question is whether the interpretation was so incompetent as to have effectively prevented an applicant from giving evidence: Perera at [38] per Kenny J;
h)the departure from the standard of interpretation “must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision”, and it must relate to the proceedings and not be merely administrative or collateral in nature: Perera at [45] per Kenny J; and
i)a relevant departure from the required standard of interpretation is sufficient to establish prejudice caused to the applicant, however further prejudice can also be shown where findings concerning an applicant’s lack of credit are also material to the Tribunal’s decision. The incompetent interpretation can thus form the context for negative credibility findings upon which a Tribunal decides to reject an applicant’s claims: Perera at [45], [47] and [49] per Kenny J. “A witness whose answers appear to be unresponsive, incoherent or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation. In the present case, the incompetence of interpretation cannot have assisted the Tribunal in making a reliable finding about Mr Perera’s credit. It may well be that, by resting its findings as to credit on answers that were poorly interpreted, the Tribunal failed to take advantage of its opportunity to see and hear the witness”: Perera at [49] per Kenny J.
The Full Court of the Federal Court in WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131 (“WALN”) found that the appellant must establish that “errors had in occurred in translation which were so material as to cause the decision making process to miscarry”: WALN at [29] per Ryan J. Evidence having probative value needs to be led in relation to the errors in translation, and as the Federal Court observed, and concluded, in SZJZE v Minister for Immigration & Citizenship [2007] FCA 1653 at [24] per Middleton J:
24. To be accepted as having any probative value, evidence would need to be led by a person competent in … [both relevant languages] to indicate the matters that had been mistranslated or not translated at all. This has not been done. I can find no merit in the first ground of appeal.
In WZAPM v Minister for Immigration & Anor [2013] FCCA 266 (“WZAPM”) evidence of the appropriate type was led, leading to a declaration of a denial of procedural fairness by reason, amongst other things, of errors by the interpreter in the interpretation of the applicant’s evidence, and an injunction issuing restraining the Minister from acting on the recommendation of an independent merits reviewer (“IMR”): WZAPM at [53] per Judge Lucev. In WZAPM the “litany of errors” set out in an interpreter’s affidavit indicated that “almost every matter interpreted at the IMR interview, large and small, relevant and irrelevant” was affected: WZAPM at [25] per Judge Lucev.
The issue is whether the evidence as to the alleged failure to properly interpret the applicant’s evidence effectively prevented the applicant from giving evidence in relation to a matter of material significance to the applicant’s claim thereby causing the decision-making process to miscarry.
The applicant has not identified what alleged errors were actually made by the interpreter or how any such errors were material to the Tribunal Decision. No transcript of the Tribunal hearing, or transcript of what is purported to be the “correct” translation of the Tribunal hearing, has been filed by the applicant.
There is, in the circumstances, no evidence before the Court which can sustain an allegation that there was misinterpretation at the Tribunal hearing, let alone misinterpretation which materially affected the Tribunal’s decision-making processes.
In the above circumstances, ground 6 has no reasonable prospect of being made out, or of establishing jurisdictional error in the Tribunal Decision.
Conclusions and orders
In relation to the Extension of Time Application the Court considers that the length of the delay is such that it necessitated a satisfactory explanation, and whilst the applicant has given an explanation, it is not an explanation which is particularly clear, and is not supported by affidavit evidence. As such, it is not a particularly satisfactory explanation. In any event, ultimately the explanation for the delay, and the length of the delay, are not the significant factors they might ordinarily be because here the merits case has no reasonable prospect of success, and indeed is so weak as to arguably have no prospect of success at all. In those circumstances it is not appropriate that an extension of time be granted for the filing of the Judicial Review Application. It follows that there will be an order that the Extension of Time Application be dismissed. It is therefore unnecessary to make any order in relation to the purported, but incompetent, Judicial Review Application: BZABK v Minister for Immigration & Citizenship & Anor [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; WZASC at [23] per Judge Lucev.
The Court will also order that name of the second respondent be changed to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 29 March 2017
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