WZAUU v Minister for Immigration and Border Protection
[2019] FCCA 2214
•16 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAUU v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2214 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time – very substantial delay – whether adequate explanation for delay – whether prejudice – whether proposed grounds of review reasonably arguable or have reasonable prospects of success. |
| Legislation: Migration Act 1958 (Cth), ss.430, 476, 477 Federal Circuit Court of Australia Act 1999 (Cth), s.75 |
| ActewAGL Distribution v The Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142; (2011) 123 ALD 486 Concise Oxford Dictionary, 7th Edn, Oxford, Oxford University Press, 1984 |
| Applicant: | WZAUU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 324 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 19 March 2015 |
| Date of Last Submission: | 19 March 2015 |
| Delivered at: | Perth |
| Delivered on: | 16 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr PD Lochore |
| Solicitors for the Applicant: | CASE for Refugees |
| Counsel for the First Respondent: | Mr PR Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the second respondent be amended to “Administrative Appeals Tribunal”.
That the applicant’s application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) in which to file the Originating Application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 324 of 2014
| WZAUU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant filed an application seeking judicial review (“Proposed Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the former Refugee Review 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 & Border Protection, (“Minister”) to refuse to grant a Protection (Class XA) visa (“Protection Visa”) to the applicant. The Proposed Judicial Review Application was filed 469 days out of time, and the applicant has made an application for an extension of time in which to file the Proposed Judicial Review Application pursuant to s.477(2) of the Migration Act (“Extension of Time Application”).
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the Proposed Judicial Review Application filed on 14 October 2014;
b)the applicant’s affidavit in support of the Proposed Judicial Review Application also filed 14 October 2014 (“Applicant’s Affidavit”);
c)a consent order made by a Registrar of the Court on 10 December 2014 (“Registrar’s Orders”);
d)a consent order made by the Court on 28 January 2015 extending to 6 February 2015 the time for compliance by the applicant for the filing of any amended application and any further affidavits, including any further affidavits in support of the Extension of Time Application;
e)the affidavit of Julian Vaughan Thomas affirmed 5 February 2015 (“Thomas Affidavit”) annexing a copy of a transcript of an interview between the applicant and an officer of the then Department of Immigration and Citizenship (“Department”) held on 15 September 2012 (“Delegate’s Interview Transcript”);
f)the proposed amended Judicial Review Application filed on 6 February 2015 (“Proposed Amended Judicial Review Application”);
g)the affidavit of David Victor Blades sworn 4 March 2015 (“Blades Affidavit”) in support of the Extension of Time Application;
h)outlines of submissions filed by the applicant on 6 March 2015 and the Minister on 12 March 2015;
i)the Court Book (“CB”), in which appears the Tribunal Decision dated 28 May 2013: CB 289-303;
j)a fact sheet entitled “Information about Tribunal Decisions R25” (“Tribunal Information Sheet”): CB 304-305; and
k)the Transcript of the hearing before the Court on 19 March 2015.
It is also relevant to note that there was no oral witness evidence or examination at the hearing of the matter before this Court.
In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment.
Extension of Time Application
Background
Pursuant to s.477(1) of the Migration Act the applicant was required to file an application for judicial review of the Tribunal Decision, made on 28 May 2013, within 35 days, that being by 2 July 2013. The Proposed Judicial Review Application was not filed until 14 October 2014. There is no dispute that the Proposed Judicial Review Application is 469 days out of time. The grounds of the Extension of Time Application as set out in the Proposed Judicial Review Application are as follows:
1.If the Applicant’s application for protection is not determined in his favour, the Applicant would face return to a country in which he alleges he would face persecution
2.The application to the Court is meritorious
3.There is a disadvantage to the Applicant if the order is not granted
4.This application is supported by an affidavit affirmed by the applicant
Evidence
In dealing with the Extension of Time Application the Court has had regard to the Applicant’s Affidavit, the Blades Affidavit, and the Delegate’s Interview Transcript annexed to the Thomas Affidavit, and to the CB. None of the deponents of the abovementioned affidavits were cross-examined on their affidavits.
Applicant’s submissions with respect to the Extension of Time Application
The applicant generally submitted that:
a)section 477(1) of the Migration Act provides that an application to the Federal Circuit Court for a remedy to be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act must be made within 35 days of the date of the decision under review;
b)section 477(2) of the Migration Act provides that the Court may order that the period be extended as the Court sees appropriate, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order;
c)rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) provides that, relevantly, the Proposed Judicial Review Application must be supported by an affidavit explaining the delay and showing why it is in the interests of the administration of justice that an extension be allowed;
d)generally, in cases of an application for an extension of time, the Court has considered the factors identified in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315; FCR at 348-349 per Wilcox J, relevantly:
i)whether, an acceptable explanation for the delay being offered, it would be fair and equitable in all the circumstances to extend the time;
ii)any prejudice suffered by the respondent resulting from the delay;
iii)the merits of the substantive application; and
iv)considerations of fairness between the applicant and other individuals in like position, taking into account the wider public interest;
e)specifically in regard to applications under s.477(2) of the Migration Act the courts have held that an extension of time will only be granted where:
i)the applicant applies in the correct form; and
ii)the Court considers it necessary in the interests of the administration of justice to grant the extension: Tang v Minister for Immigration & Citizenship [2013] FCA 824; WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 (“WZASQ”);
f)in DZAFG v Minister for Immigration & Anor [2015] FCCA 168 (“DZAFG”) at [34] per Judge Harland, this Court dealt with a longer delay of 812 days and concluded that, on the facts of that case, if the applicant had been able to establish an arguable case then that would have outweighed “the inadequacy of that delay”; and
g)there has been a significant delay in bringing the Proposed Judicial Review Application, but in all the circumstances of the case, the interests of the administration of justice warrant an extension being granted.
In relation to the explanation for the delay the applicant submitted as follows:
a)two affidavits have been filed on behalf of the applicant to explain this delay:
i)the Applicant’s Affidavit; and
ii)Mr Blades’ Affidavit;
b)the applicant explains how he wanted to proceed with judicial review because he believed things went wrong in the Tribunal review: Applicant’s Affidavit at [4];
c)the first 11 months of delay were essentially due to the applicant experiencing difficulty in finding legal assistance: Applicant’s Affidavit at [3]-[15];
d)from April 2014 the applicant obtained some assistance, but then the recording of the Delegate’s interview needed to be procured, and the case prepared. The assistance was slow, but given the limited resources available to the applicant’s solicitors for judicial review casework, and the scarce resources of pro bono counsel, it is submitted that the time for each step (as explained by the Blades Affidavit) was not unreasonable;
e)the inquiry at this stage is not seeking a precise accounting for each day, but a general sense of why progress was slow, or not being made; and
f)the answer in this case is that the application was delayed for 11 months due to the difficulties the applicant experienced obtaining assistance with limited funds and very little English, and that it took a further six months when it ought to have taken only a month due to the limited resources available to those providing legal assistance to the applicant.
In relation to prejudice, both to the applicant and the Minister, the applicant submitted that:
a)the prejudice facing the applicant, whose Tribunal Decision providing for his removal to a country where he alleges he faces a risk of severe harm has not yet been tested under judicial review, in circumstances where his lawyers have certified in writing that there are reasonable grounds for believing that the litigation has a reasonable prospect of success, is apparent;
b)in relation to prejudice to the Minister, the applicant contends that the Minister has not, to the applicant’s knowledge, incurred any costs relating to deportation or other such matters that might be characterised as costs thrown away as a result of delay; and
c)in DZAFG Judge Harland in considering this issue confirmed that in addition to deportation costs, the Court would also need to consider further costs of arguing the case, should an extension of time be granted, but noted that this would on balance fall away where such a case had merit. It is respectfully submitted on behalf of the applicant that the grounds disclosed in this application are of sufficient merit.
In conclusion the applicant submitted that, while the delay is significant, it occurred in circumstances where:
a)there is a reasonable explanation for that delay;
b)it is not apparent that the Minister will be prejudiced by the grant of leave; and
c)there are well-articulated arguable grounds of judicial review,
and, therefore, an extension of time ought to be granted if any of the grounds are found to have merit.
Minister’s submissions with respect to the Extension of Time Application
The Minister submitted that:
a)pursuant to s.477(1) of the Migration Act the applicant was required to file the Proposed Judicial Review Application within 35 days of the Tribunal Decision, that is by 2 July 2013;
b)the Proposed Judicial Review Application was not filed until 14 October 2014, and is therefore 469 days outside of the 35 day period permitted by s.477(1) of the Migration Act;
c)section 477(2) of the Migration Act provides that the Court may, by order, extend the 35 day period if the applicant has made an application for that order in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order;
d)case management issues are relevant to an assessment of the “interests of the administration of justice”, which is different to the interests of justice: WZANW v Minister for Immigration & Anor [2009] FMCA 1075 (“WZANW”) at [25] per Lucev FM; WZANX v Minister for Immigration & Anor [2009] FMCA 1010 at [11] per Lucev FM;
e)there are seven factors which are relevant to a consideration of whether it is in the interests of the administration of justice to extend time to make an application for judicial review of a Tribunal decision: SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44] per Nicholls FM; WZANW at [26] per Lucev FM. Those factors are:
i)the extent of the delay;
ii)the reason for the delay;
iii)whether there is any merit in the application;
iv)whether there is any prejudice to the respondents;
v)the impact on the applicant;
vi)the interests of the public at large; and
vii)the Court’s discretion itself;
f)the Court must not only look at the explanation for the delay, but also at the extent of the delay. The extent of the delay must be balanced against the reason for the delay: WZANW at [29] per Lucev FM;
g)in WZASQ at [14] per Judge Lucev the Court described a delay of 74 days in filing the application to the Court as “substantial”. A delay of 54 days after the 35 day time limit prescribed by s.477(1) of the Migration Act is likely to be fatal to an application for an extension of time under s.477(2) where there is no reason for the delay: WZANW at [28] per Lucev FM. The longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 (“Tran”) at [38] per Wigney J;
h)a lack of legal advice, or a lack of positive legal advice, is not alone a sufficient excuse for failure to lodge an application for review within time: Tran at [35] per Wigney J;
i)a delay of the magnitude of 469 days is so inordinate that the Minister contends it is, by itself, a compelling reason to refuse the Extension of Time Application. The Minister notes that in Jarosek v Department of Immigration [2006] FMCA 1048 at [27] per Walters FM this Court found that the delay of approximately 12 months in that matter was inordinate. In Tran, a delay of 18 months was found to be “excessive”;
j)there is also no satisfactory, let alone persuasive, explanation for the delay of 469 days: see Tran at [38] per Wigney J;
k)the applicant was not in immigration detention at the time of the Tribunal Decision: CB 181, and was aware of the 35 day time limit. There is no indication as to when, after receiving advice of the Tribunal Decision, the applicant contacted Legal Aid, or as to when Legal Aid advised that they were unable to assist him: Applicant’s Affidavit at [4]-[7];
l)further, the applicant has not advised of any steps that he took following the advice from Legal Aid and up until his counsellor, Mr Shukoor, gave him a list of migration agents: Applicant’s Affidavit at [8]-[9];
m)email correspondence at Annexure “A” to the Blades Affidavit states that on 20 December 2013 Mr Shukoor advised Mr Blades that the applicant had told him that some things went wrong during the Tribunal review, and that he had asked the applicant to make a list so that he could send them to Mr Blades for his consideration. Mr Blades made an enquiry of Mr Shukoor as to the applicant’s list of concerns on 23 January 2014, but only received a telephone call from Mr Shukoor on 22 April 2014 advising that the applicant was ready to discuss his concerns: Mr Blade’s Affidavit at [4] and [5];
n)the applicant has given no explanation as to why, more than four months after Mr Shukoor had asked him to make a list of what he considered went wrong during the Tribunal’s review, he had not provided such a list;
o)the applicant discussed his concerns with the Tribunal Decision at a meeting on 29 April 2014, and met with his current solicitors on 14 May 2014, and a recording of the Delegate’s Interview Transcript on 15 September 2012 had been acquired by the applicant’s solicitors by 4 June 2014: Applicant’s Affidavit at [14] and [15]; Blades Affidavit at [9], but the application was still not filed until 14 October 2014. This further period of delay of more than 4 months is also inordinate, given that the application was then 12 months out of time; and
p)the Minister contends that the inordinate delay of 469 days in filing the application and the absence of a satisfactory and persuasive explanation for this delay is itself a sufficient basis to refuse the Extension of Time Application.
Consideration – Extension of Time Application
The non-exhaustive list of factors the Court will generally take into account in determining whether to grant an extension of time include:
a)the length or extent of delay;
b)the reason for the delay;
c)any prejudice to the opposing party; and
d)the merits of the proposed application.
Hunter Valley Developments, FCR at 348-349 per Wilcox J.
Under s.477(1) of the Migration Act an application to this Court for judicial review must be made within 35 days of the date of the Tribunal Decision. The Tribunal Decision was made on 28 May 2013, and therefore the applicant was required to file his Proposed Judicial Review Application by 2 July 2013. Having not lodged his Proposed Judicial Review Application until 14 October 2014 the applicant is 469 days out of time.
The Court may make an order extending the 35 day time limit in which to accept the Proposed Judicial Review Application if, pursuant to s.477(2) of the Migration Act:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
Regard must be had to r.44.05(2) of the FCC Rules which states that:
(2) An application must be supported by an affidavit including:
(a) …; and
(b) …; 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.
Length of and reason for delay
The unchallenged narrative of events derived from the Applicant’s Affidavit and the Blades Affidavit is as follows:
a)the applicant received a copy of the Tribunal Decision from his then migration agent within the 35 day period for applying for judicial review of the Tribunal Decision, and did want to proceed with judicial review because he believed that “somethings went wrong with the … review”, but his then migration agent was not able to help him with further challenging the Tribunal Decision, but did provide him with a list of Legal Aid contacts: Applicant’s Affidavit at [4];
b)the Legal Aid contacts provided contained only one contact in Western Australia, that being the general contact address and number for Legal Aid Western Australia, and the applicant says that he arranged an appointment to see a lawyer “in 1 months time”: Applicant’s Affidavit at [5] and Annexure B, but no specific time is referred to;
c)the applicant attended the scheduled meeting at Legal Aid Western Australia, but was advised that Legal Aid Western Australia was not able to assist with an application for judicial review and that he would have to retain another lawyer: Applicant’s Affidavit at [7];
d)the applicant had had contact with a counsellor whilst previously detained at the Curtin Detention Centre in Derby, and contacted that counsellor, Mr Shukoor, who gave him a list of migration agents whom Mr Shukoor thought might be able to help the applicant: Applicant’s Affidavit at [8]-[9] and Annexure C;
e)the applicant then contacted the Metropolitan Migration Resource Centre (“MMRC”), and an appointment was arranged for the applicant on 11 November 2013: Applicant’s Affidavit at [10];
f)MMRC contacted a migration agent on the list given to the applicant by Mr Shukoor, but that migration agent told the applicant that he was about to go overseas, but that if the applicant paid him $2,000 he would help him to make an application for judicial review once the migration agent returned from overseas, but the applicant did not have the money and decided that he could not afford to retain that migration agent: Applicant’s Affidavit at [11];
g)the applicant then had “trouble finding a lawyer to help … with my case”: Applicant’s Affidavit at [12];
h)the applicant says that Mr Shukoor contacted Mr Blades, a Barrister at John Toohey Chambers, on 19 December 2013, and that Mr Blades requested a copy of the Tribunal Decision which the applicant provided to Mr Shukoor and which he subsequently forwarded to Mr Blades: Applicant’s Affidavit at [13];
i)the Tribunal Decision was provided to Mr Blades on 20 December 2013: Blades Affidavit at [2] and Annexure A;
j)also on 20 December 2013 Mr Blades’ father passed away, and he was subsequently required to participate in a number of matters relating to his father’s estate as well as dealing with a significant number of pro bono migration inquiries: Blades Affidavit at [3] (the Court observes that Mr Blades is a barrister who regularly appears pro bono for applicants in migration judicial review proceedings in the Perth Registry of this Court);
k)in a 20 December 2013 email to Mr Blades Mr Shukoor indicated that in relation to the “things [that] went wrong during the review” he had asked the applicant “to make a list so that I can send them over to you for consideration”: Blades Affidavit, Annexure A;
l)the applicant says that he “identified specific concerns that I had with the … Tribunal’s decision”: Applicant’s Affidavit at [14], but does not indicate when he did so;
m)on 23 January 2014 Mr Blades, who had not received the applicant’s list of concerns, left a telephone message with Mr Shukoor inquiring as to the status of that list: Blades Affidavit at [4];
n)on 22 April 2014 Mr Blades received a telephone call from Mr Shukoor notifying him that the applicant was ready to discuss his concerns with the Tribunal Decision, and he arranged to meet the applicant and Mr Shukoor at Mr Shukoor’s workplace on 29 April 2014: Blades Affidavit at [5];
o)on 29 April 2014 Mr Blades, Mr Shukoor, an interpreter and the applicant met and discussed the applicant’s concerns: Applicant’s Affidavit at [14]; Blades Affidavit at [6], with the applicant specifically expressing a concern “that the Tribunal had stated that he had not previously mentioned several incidents of detention when he had in fact mentioned those incidents to officers of the … Department”: Blades Affidavit at [6], as a consequence of which Mr Blades suggested that CASE for Refugees might act as instructing solicitors and assist the applicant in acquiring the relevant audio and documentary records relating to the interview with the Delegate: Blades Affidavit at [6], which the applicant understood as being informed that Mr Blades would refer the matter to CASE for Refugees for further consideration of the applicant’s judicial review prospects: Applicant’s Affidavit at [14];
p)Mr Blades also provided CASE for Refugees with a summary of his opinion of the possible grounds for judicial review, depending on the content of the recordings, by email on 29 April 2014: Blades Affidavit at [7];
q)the applicant met with Ms Pasha, a solicitor at CASE for Refugees on 14 May 2014 and, in the Farsi language which both the applicant and Ms Pasha spoke, was advised that CASE for Refugees had a limited capacity to assist, and whether they could do so would largely depend on the merits of the applicant’s case, and Ms Pasha also advised the applicant that there was nowhere to refer him as there were no other organisations doing this type of work for free in Perth: Applicant’s Affidavit at [15];
r)at the meeting on 14 May 2014 the applicant signed an authority authorising CASE for Refugees to obtain documents and audio recordings relating to his Protection Visa application from the Department: Applicant’s Affidavit at [15];
s)on 16 May 2014 Ms Pasha informed Mr Blades that CASE for Refugees would assist the applicant in acquiring the audio recording of the interview with the Delegate, and that depending on its content may be willing to assist the applicant in making an application for judicial review: Blades Affidavit at [8];
t)on 4 June 2014 Ms Pasha informed Mr Blades that CASE for Refugees had acquired the audio recording but that she did not have time to listen to it due to workload and upcoming leave commencing on 11 June 2014, and she asked if Mr Blades might have time to listen to the recording himself: Blades Affidavit at [9];
u)on 9 July 2014 Mr Blades informed Ms Pasha that he also lacked the capacity to listen to the audio recording: Blades Affidavit at [9];
v)at or about mid-July 2014 Ms Pasha informed Mr Blades that she had listened to the recording and as a result had identified material that may support a judicial review application: Blades Affidavit at [10];
w)on 28 July 2014 Mr Blades provided a more detailed opinion on potential grounds for judicial review taking into account the information provided to him by Ms Pasha from her listening to the audio recording: Blades Affidavit at [11];
x)in early September 2014 Mr Blades was contacted by Ms Pasha by email and provided further advice on issues related to the matter, but during the period from 18 to 30 September 2014 he understood Ms Pasha was on leave and that owing to the limited resources of CASE for Refugees there was no other solicitor able to manage the matter in her absence: Blades Affidavit at [12];
y)on 3 October 2014 Mr Blades arranged a meeting with the applicant and an interpreter in order for the applicant to depose an affidavit in support of the Extension of Time Application: Blades Affidavit at [13];
z)on 9 October 2014 Mr Blades reviewed a draft of an originating application, and provided the Applicant’s Affidavit sworn 7 October 2014 to Ms Pasha: Blades Affidavit at [14]; and
aa)on 14 October 2014 Ms Pasha informed Mr Blades that the Proposed Judicial Review Application had been filed: Blades Affidavit at [15].
In considering the law with respect to delay in making an application, and in particular a judicial review 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 (in Marks the delay was 17 months); 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 CLR at 553 per McHugh J.
The above summary of the judgments of the High Court, applied by the Federal Court to a migration matter in SZOBL v Minister for Immigration & Citizenship [2012] FCA 824 (“SZOBL”) 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 (“SZANS”) 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 (“Suh”) at [29] per Spender, Buchanan and Perram JJ. The summary demonstrates the error in the observations made in DZAFG (relied upon by the applicant), where, as the applicant’s submissions suggest, this Court made observations that time might be extended notwithstanding extensive delay merely because a proposed application for judicial review had arguable merit. That is not the law, and as Marks observes, limitation periods are to be rigidly applied in all but very exceptional cases where a court is considering prerogative relief, and thereby, as Brisbane South Regional Health Authority observes, an otherwise good cause of action may be defeated, and so, as Tran observes, delay alone may defeat some claims.
The Court also notes that DZAFG was an extempore judgment given in relation to an injunction application to prevent a person being removed from the Commonwealth, in circumstances where no application for review had been considered by the then Refugee Review Tribunal. In DZAFG no reference was made to Marks or Brisbane South Regional Health Authority. The observation in DZAFG at [34(a)] per Judge Harland to the effect that because a proposed application for judicial review has merit, justice would require that consideration of the merit be given priority over the question of delay, runs directly counter to the observations of the High Court in both Marks and Brisbane South Regional Health Authority, and ought not to be followed, as in the Court’s view, those observations are plainly wrong. For the above reasons, the Court will not follow DZAFG. Indeed, the Court is bound not to, but rather to follow otherwise binding High Court and Federal Court authority: see SZANS; Suh, that authority being the cases set out above: see Marks, Brisbane South Regional Health Authority, Tran and SZOBL.
A further observation may be made: in Marks consideration was being given to the application of rules of court, whereas in s.477(1) of the Migration Act it is the Parliament which has specifically legislated the relevant time limit, representing therefore the judgment of Parliament as to how the welfare of society is best to be served: Brisbane South Regional Health Authority CLR at 553 per McHugh J. This must be afforded proper and due regard, for as much as rules of court must be obeyed: Marks at [16] per McHugh J, the rationale for obeying legislation enacted by Parliament representing the people as a whole must carry even more weight.
In this case, there is a very substantial delay. The delay is more than thirteen times the existing limitation period, and an extension of time, if granted, would extend the period granted to the applicant in which to file to 504 days. As was stated in Marks at [16] per McHugh J where a significant period of time has elapsed, and in all but very exceptional cases, the limitation period should be “rigidly applied”. In the Court’s view there is, on the evidence, nothing “exceptional”, or obviously exceptional, in the circumstances of the applicant’s case.
This is a case in which, in the Court’s view, the delay alone in bringing the Proposed Judicial Review Application is so lengthy that, of itself, it justifies not granting the Extension of Time Application.
The applicant’s failure to make an application for judicial review to this Court earlier is sought to be explained by a lack of legal advice and access to a lawyer. In this regard, the application for an extension of time proceeds on a false premise which is again inconsistent with previous authority of the High Court, the Federal Court and this Court.
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. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.
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 judicial review proceedings in this Court.
Albeit that there is no right to legal representation in migration proceedings in this Court, it is nevertheless the case that the fact that an applicant does not have a lawyer is a factor which might be taken into account when exercising a discretion to waive a requirement or extend a relevant time limitation: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J, but more particularly where there is only a short delay, as in MZZIV, where the delay was 11 days and considered by the Federal Court to be “not significant”: MZZIV at [1] and [5] per Mortimer J, or where it is conceded that the delay was “not substantial”, and where the Minister also conceded that there would be no prejudice: ADN15 at [30] per Charlesworth J.
In Tran the Federal Court found the explanation for a delay of 18 months to be neither adequate nor satisfactory: Tran at [35] per Wigney J. In Tran the Federal Court observed as follows at [33]-[35] and [38] per Wigney J:
33. Mr Tran’s explanation for the delay was that when the Tribunal affirmed the decision to cancel his visa, he asked counsel who represented him before the Tribunal to advise him on the prospects of success if he applied to the Court for a review of the Tribunal’s decision. Counsel advised him that there was no error of law and, presumably, that therefore his prospects of success were low. He then went to the Prisoners Legal Service. There he received advice from a legal advisor that he would be in a better position to conduct research and obtain legal advice when in immigration detention after his release from prison. He was unable to obtain any other legal advice at the time because neither he nor his aunt was in a position to pay for private legal advice. As a result, Mr Tran did nothing further towards filing an application whilst he was in prison.
34. On his release from prison and upon his transfer to immigration detention in December 2012, Mr Tran applied for legal aid. That application was rejected because the prospects of successfully challenging the Tribunal’s decision were low. He then received legal advice that he could or should pursue other avenues potentially available to him under the Act. It appears that he also was advised to write to the Minister seeking his intervention. He apparently took both these steps, however both were unsuccessful. It was at this time that Mr Tran began to do his own research. He discovered the existence of the Direction and formed the view that the Tribunal had not correctly applied the Direction.
35. This explanation for the 18 month delay is neither adequate nor satisfactory. The fact that Mr Tran initially received legal advice that any application for review of the Tribunal’s decision would have limited prospects is not a sufficient explanation; all the more so when it would appear that this was sound advice. The lack of legal advice (or in this case, the lack of positive legal advice) is not alone a sufficient excuse for failure to lodge an appeal (or in this case an application for review) within time: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship[2008] FCA 298 at [6]; Manna at [17].
38. The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time.
The applicant was sent the Tribunal Information Sheet, together with the notification of the Tribunal Decision dated 28 May 2013, in which it was indicated that if he thought the Tribunal Decision was wrong in law he may seek judicial review in the then Federal Magistrates Court: CB 304. It is also relevant to observe that the applicant was not in immigration detention during the relevant period: CB 181, and was thus free to make such enquiries as he saw fit with respect to the issue of his immigration status.
Over the period of more than 16 months between the Tribunal Decision being handed down and the Proposed Amended Judicial Review Application being made the applicant has variously had the assistance of or seen:
a)his own migration agent (who was a lawyer: CB 279) who advised him that he could bring a judicial review application to this Court;
b)a Legal Aid lawyer who indicated that Legal Aid Western Australia could not assist him with a judicial review application;
c)a counsellor, Mr Shukoor, experienced in dealing with refugee issues;
d)another migration agent who was prepared to assist him to make a judicial review application for a fee after that migration agent had returned from holidays;
e)a barrister, Mr Blades experienced in the conduct of migration judicial review proceedings in this Court; and
f)a solicitor from a firm specialising in, and with considerable experience and expertise in, refugee judicial review applications in this Court.
In the Court’s view it is reasonable to infer that at least the migration agents, Mr Blades and Ms Pasha, and at the very least Mr Blades and Ms Pasha, would have been aware of the time limit upon making a judicial review application to this Court. It is inconceivable to the Court that the migration agents, and at the very least Mr Blades and Ms Pasha, did not advise the applicant of the relevant time limit. It is curious, however, that in neither the Applicant’s Affidavit nor the Blades Affidavit is there any discussion or mention of the time limit being discussed in the various meetings and discussions involving the applicant, Mr Shukoor, Mr Blades and Ms Pasha. This evidentiary hiatus does nothing to assist the applicant in establishing a reason or explanation for the delay in filing the Proposed Amended Judicial Review Application.
When the unchallenged narrative of events derived from the Applicant’s Affidavit and the Blades Affidavit, set out at [16] above, is examined, it can be seen that throughout the relevant timeframe there were lengthy and unexplained delays before further steps were taken, including the following:
a)after the applicant had seen a lawyer from Legal Aid Western Australia, approximately one month after the Tribunal Decision was published, the applicant appears to have done nothing for a period of approximately five months until he contacted the counsellor Mr Shukoor who gave him a list of migration agents that Mr Shukoor thought might be able to help the applicant;
b)when the applicant had seen one of the migration agents on the list given to him by Mr Shukoor, and decided that he could not afford to retain that migration agent to assist him to make a judicial review application, it was a further five weeks at least before Mr Shukoor (and not the applicant) contacted Mr Blades who, in circumstances of no doubt considerable personal difficulty, acted promptly in endeavouring to assist the applicant on or about 20 December 2013;
c)although the applicant had been requested to make a list of his concerns with respect to the Tribunal Decision this was not provided to Mr Shukoor or Mr Blades for a further four months, notwithstanding a follow-up telephone request after one month by Mr Blades to Mr Shukoor following the initial contact with Mr Blades by Mr Shukoor;
d)by the time that Mr Blades met with the applicant on 29 April 2014 more than four months had passed since the initial contact with Mr Blades, and 11 months had passed since the handing down of the Tribunal Decision;
e)although Mr Blades provided possible grounds for judicial review on 29 April 2014 to the solicitors, the solicitors did not seemingly commence to act for the applicant until a further fortnight had passed, and then a further fortnight passed before they acquired the audio recording of the Delegate’s Interview, but seemingly neither Ms Pasha nor Mr Blades had time to listen to the audio recording until mid-July 2014 (the audio recording having been acquired by the solicitors on 4 June 2014); and
f)Mr Blades provided a detailed opinion on potential grounds for judicial review on 28 July 2014, and provided further advice in early September 2014, but did not meet with the applicant until 3 October 2014, and it was not until ten days later that the Proposed Judicial Review Application was then filed. There was thus a period of some six weeks approximately between Mr Blades providing detailed potential grounds for judicial review and Ms Pasha going on leave in mid-September 2014 during which no judicial review application appears to have been prepared, and it was not until a fortnight into October 2014 that the Proposed Judicial Review Application was filed. The delay of six weeks between July 2014 and mid-September 2014 is not explained, and even in early September 2014 when Mr Blades was contacted by Ms Pasha and provided further advice on relevant issues, the failure to file the Proposed Judicial Review Application in the fortnight before Ms Pasha then went on leave is also unexplained.
The applicant was not without legal or other advice or assistance for much of the period of delay of more than 16 months. Notwithstanding that advice and assistance (including from a barrister and a solicitor) there were lengthy delays which are simply unexplained, even when the barrister and solicitor appeared to have been formally acting or assisting the applicant. Many of the significant delays are of a length which exceeds the 35 day time limit. It appears that the only proper explanation for the delay in the circumstances of this case is that neither the applicant, nor those advising or assisting him, acted with the urgency which the circumstances required, and, moreover, failed to do so over substantial periods as time passed, resulting in the very substantial delay of more than 16 months before the Proposed Judicial Review Application was filed. It is relevant to observe that even after Mr Blades began to assist the applicant, the applicant does not appear to have acted with any degree of urgency in providing Mr Blades with information to assist Mr Blades in considering whether there was a possible judicial review application to be made on behalf of the applicant. Nor when solicitors began to act for the applicant in mid-May 2014 was there any sense of urgency, and a further five months passed (that is a period of more than four times the relevant limitation period) before the Proposed Judicial Review Application was ultimately filed.
There is also simply no cogent explanation as to why the applicant did not, as so many other applicants in a similar position do, file a judicial review application without the assistance of a lawyer. There is, after the advice from his then migration agent (who was also a lawyer) that the migration agent was not able to assist with an application for judicial review, a significant period of more than 16 months in which no action was taken, and in which no discernible sense of urgency in relation to the applicant’s situation was exhibited by the applicant, or those assisting him. During almost the entirety of the period of delay, the applicant was aware, that he was able to file a judicial review application himself: Applicant’s Affidavit at [4]; see also the Tribunal Information Sheet at CB 304.
It follows therefore that the inability to obtain legal advice or legal representation in relation to the Tribunal Decision, and whether an application for judicial review ought to be lodged, does not explain the delay in this case. It certainly does not explain the length of the delay in this case.
Insofar as the applicant complains that he does not understand English, that is not uncommon, and indeed probably more common than not, in applications to this Court for judicial review of decisions of the Tribunal concerning protection visa applications involving self-represented litigants. In relation to the applicant’s English language skills there is in fact no evidence that any lack of English language skills affected the applicant’s capacity to obtain assistance, or interfered with the assistance that he ultimately did obtain. Indeed, the applicant appears to have been relatively resourceful in sourcing out migration agents, a counsellor and lawyers to assist him, and it is simply not evident that any part of the delay was due to the applicant’s English language skills. Further, the applicant does not appear to be in any different a position to other applicants around Australia for judicial review of Tribunal decisions under the Migration Act, the vast majority of whom file their judicial review applications under s.476 of the Migration Act with this Court within time. In any event, notwithstanding the fact that the applicant has limited English ability, and did not initially have the services of a lawyer, and that these are matters which require some consideration: MZZIV at [5] per Mortimer J; ADN15 at [29] per Charlesworth J, they do not of themselves explain the delay, and the Court nevertheless needs to be cautious in placing too much reliance on matters like these 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, it needs to be remembered that 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 that decision: Marks at [17] per McHugh J. In this case that is a very significant factor where the delay in making the Proposed Judicial Review Application is a very substantial 469 days, being more than 13 times the statutory limitation period.
Ignorance of procedure and 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”) where the Federal Court observed as follows:
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…
In relation to the applicant’s financial position there is no evidence as to the applicant’s finances, save that in the Applicant’s Affidavit at [11] he indicated that he “did not have the money” to pay $2,000 to a migration agent to assist him to make an application for judicial review, and that he therefore “decided that I could not afford to retain him”. That occurred on or around 23 November 2013: Applicant’s Affidavit at [11], and does not explain the ongoing delays once the applicant commenced to be assisted by Mr Blades (in December 2013), and then Ms Pasha (in May 2014), whose assistance was not contingent upon the applicant’s financial position. As set out above, there were then substantial delays which are otherwise unexplained: see [16] and [33] above. Whatever the applicant’s financial position it ultimately did not preclude him from obtaining legal assistance or representation, or at any stage making the application for judicial review himself, and the applicant’s financial position had no effect on the still substantial delays that ensued after the applicant had obtained pro bono legal assistance and representation.
In SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 (“SZMWH”) the Federal Court observed that 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.
Having regard to the matters set out immediately above the Court considers that the alleged lack of:
a)legal representation;
b)legal advice;
c)English language skills; and
d)finances,
do not constitute a proper explanation for delay, and certainly not a delay of 469 days, in making the Proposed Judicial Review Application. There is simply not the necessary degree of persuasiveness in the explanation sufficient to explain such an excessive delay: Jess v Scott & Ors (1986) 12 FCR 187; (1986) 70 ALR 185, FCR at 195 per Lockhart, Sheppard and Burchett JJ.
The length of the delay in this case is sufficient of itself in the Court’s view to warrant not exercising the discretion to extend time, but the length of the delay and the failure to provide an adequate explanation for the whole, or at least a very significant part of the delay, also warrants the Court not exercising the discretion to extend time.
Prejudice
There is prejudice to the Minister arising from the fact that this is a case in respect of which the Minister might rightfully have thought that the litigation was at an end by reason of the extraordinary length of the delay in making the Proposed Amended Judicial Review Application. The Minister is prejudiced by reason of the fact that he was entitled to consider that the fruits of the litigation were his, or, more formally that the Minister had “a vested right to retain the judgment or decision”: Marks at [17] per McHugh J. In those circumstances there is additional prejudice to the Minister by reason of the costs incurred as a consequence of the filing of the Proposed Amended Judicial Review Application, and the consequent hearing on 19 March 2015. There is no evidence that the applicant is in funds to meet any award of costs against him, and the Court infers from the Applicant’s Affidavit and the evidence there given of the applicant’s relative impecuniosity that any award of costs would likely not be met by the applicant.
In the above circumstances the prejudice to the Minister weighs against the grant of the Extension of Time Application.
Merits of the Proposed Amended Judicial Review Application for the purposes of the Extension of Time Application
On 6 February 2015 the applicant filed the Proposed Amended Judicial Review Application containing three proposed grounds of review. Ground 3 was abandoned. Grounds 1 and 2 are as follows:
1. In assessing whether the applicant faces a real chance of persecution involving serious harm for a Convention reason should he return to Iran, the Refugee Review Tribunal made a jurisdictional error, through constructively failing to exercise jurisdiction, by finding that:
(i) the applicant had not been detained and tortured in Iran on numerous occasions ([58]);
(ii) at hearing, the applicant claimed to have been detained on an additional ten occasions ([58]);
(iii) the applicant had not mentioned ten detentions between 2006 and 2008 in his protection visa application statement ([35]);
(iv) it was not credible that if the applicant had related these incidents to his representative, they would not have been included in his protection visa statement ([58]);
(v) no independent documentary evidence was provided in relation to his detention ([55]);
(vi) all the detentions claimed by the applicant "are fabrications by the applicant with a view of bolstering his claims for a protection visa" ([58]),
in circumstances where
(vii) the applicant mentioned during the interview with the delegate that he had been detained and beaten on a number of occasions (CB 150; transcript p 15. 18, 19);
(viii) the applicant's protection visa application stated that he was detained in 2006 by Etelaat, held for eight to ten days and beaten many times ([13]);
(ix) the applicant told his representative about these detentions and has medical evidence from Iran in relation to his torture.
(x) the applicant stated at his entry interview that he had been the subject of harassment: "A lot. 100 times. 10 times they closed down my shop." (CB 29);
(xi) the applicant stated at his entry interview that the police would stop and question him from 2006 until the time he left Iran (12/05/2012) (CB 30);
(xii) there was medical evidence before the Tribunal concerning the injuries the applicant claimed to have suffered in Iran (CB 280-285).
2. Alternatively, or in addition, the Tribunal made a jurisdictional error by ignoring relevant material before it, namely the claims and submissions made by the applicant concerning multiple instances of detention, beating and harassment, and medical evidence supporting those claims, as outlined in subparagraphs (vii) to (xii) above.
In determining whether the merits of the Proposed Amended 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: ActewAGL Distribution v The Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142; (2011) 123 ALD 486 at [111] per Katzmann J, 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 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, reveal 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: Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25] per Mortimer J. Success in this context is to be measured by reference to the fact that the Tribunal Decision may be liable to be set aside on judicial review where it is found to be affected by jurisdictional error: 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 J, but this Court does not have the jurisdiction to review the merits of the Tribunal Decision or determine the applicant’s claim for protection: 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, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The applicant submits that the merits of the Proposed Amended Judicial Review Application are such that the Extension of Time Application ought to be granted. The Court has considered below the grounds of review in the Proposed Amended Judicial Review Application for the purposes of determining whether the Extension of Time Application ought to be granted in accordance with the principles referred to at [46] above.
The Court has therefore independently considered the grounds of the Proposed Amended Judicial Review Application for the purposes of the Extension of Time Application, as set out hereunder.
Factual and procedural background to the Proposed Amended Judicial Review Application
On 9 September 2012 the applicant submitted his Protection Visa application. The applicant provided a written statement in support of his Protection Visa application in which he stated that, amongst other things:
a)he believes in God but does not have any religion;
b)he left Iran because he feared for his life;
c)he is a motorcycle mechanic and owned a motorcycle repair shop close to a local mosque and when people came and asked for charity he refused and told them he did not believe in Islam;
d)in 2006 he started having problems with Sepah and Ettelaat because they found out that he did not believe in Islam, and in 2006 he was arrested by Ettelaat and taken to a place where he was detained for 8 to 10 days and was beaten many times;
e)the harassment continued until he had to close his business, and many times they closed his shop which was his only source of income;
f)during the election he had been an escort for certain opposition figures. Because of his involvement with the opposition the Sepah and Ettelaat started picking on him and asking why he was riding those sort of motorbikes (usually Sepah people ride those motorbikes);
g)Sepah people offered for him to go and work with them but he refused, and around midday one day they came and took him to the Ettalaat. Sepah and Ettelaat made it impossible for him to live and work in his local area;
h)in January 2012 while he was on his way to the bank three persons approached him and asked him why he was saying that he was not a Muslim, and started to beat him with their sticks and broke his wrist and one of his ribs. Many people came to look and the attackers left. Someone called an ambulance and he was taken to hospital;
i)at the end of March 2012 four people came to his home in civilian clothes with a car and asked for him, but he was not there. He was afraid and did not return, and went into hiding in his sister’s house or his father-in-law’s house. He remained in hiding until he left for Australia;
j)on 12 May 2012 he flew from Iran to Indonesia, and from Indonesia he travelled to Australia by boat; and
k)he believes that if he returns to Iran he will face a real chance of being seriously harmed and or killed by the Iranian authorities because he does not believe in Islam, for his political opinion because he escorted opposition figures, and for his perceived political opinion of being opposed to the regime because he had sought protection in Australia and participated in protests: CB 43 and 97-99.
On 15 September 2012 the Delegate of the Minister interviewed the applicant, and on 13 December 2012 the Delegate’s Decision was to refuse to grant the applicant a Protection Visa: CB 142-164.
On 27 September 2012 the applicant was granted a Bridging E visa and was released from immigration detention: CB 181.
On 14 December 2012 the applicant applied to the Tribunal seeking review of the Delegate’s Decision to refuse to grant him a Protection Visa: CB 168-172.
The applicant’s migration agent provided submissions to the Tribunal on 22 February 2013 and further submissions on 26 February 2013: CB 207-245 and 246-247.
The applicant appeared at a hearing before the Tribunal on 18 April 2013, with the assistance of his migration agent and an interpreter: CB 248-251, 252-253 and 269-272.
On 1 May 2013 the applicant’s migration agent provided post-hearing submissions to the Tribunal attaching an International Health and Medical Services (“IHMS”) Induction Health Assessment, an IHMS Mental State Examination Assessment, and an IHMS mental state examination report (“IHMS Records”): CB 275-279.
On 28 May 2013 the Tribunal Decision affirmed the Delegate’s Decision to refuse to grant the applicant a Protection Visa.
Grounds
Grounds 1 and 2 can be summarised as follows:
a)that in assessing whether, if the applicant returns to Iran, the applicant faces a real chance of persecution involving serious harm for a Convention reason, the Tribunal constructively failed to exercise jurisdiction and thereby made a jurisdictional error as particularised in six findings, and six circumstances, that allegedly demonstrate the asserted jurisdictional error (ground 1); and
b)that the Tribunal ignored relevant material before it, specifically the applicant’s claims and submissions concerning multiple instances of detention, beating and harassment, and medical evidence supporting those claims, and thereby made a jurisdictional error (ground 2).
The applicant submits that the claims of repeated detention and beatings by the authorities are crucial to the assessment of whether the applicant faces a real chance of persecution if the applicant returns to Iran, and that the Tribunal’s assessment of the applicant’s credibility in other respects may have been different if the Tribunal had properly considered the evidence relating to the applicant’s claim that he was detained, beaten and harassed. The Proposed Amended Judicial Review Application focuses on the Tribunal’s alleged failure to consider, or properly consider, aspects of the applicant’s evidence that he was detained and beaten on 10 further occasions following his initial detention and beatings in 2006, namely:
a)the applicant’s evidence to the Delegate that he was detained on 10 occasions between 2006 and 2011; and
b)the IHMS records.
The applicant’s credibility
The Tribunal set out its findings and reasoning in relation to the applicant’s credibility at CB 298-299 at [55] to [57] as follows (transcribed verbatim, except where otherwise indicated):
55. In relation to these claims, the Tribunal considered the applicant oral testimony at the hearing. He initially claimed that as an apostate he faced execution in Iran and the hands of the Sepah and the Etilaat. He was asked if he had adopted another religion, and testified that he was just looking into Christianity and had done some research on it, and that he was impressed by what he had seen about it, although he had not taken any steps to convert to Christianity. He testified that he was approached in Iran at his place of business located next to a mosque and that he was often asked for donations by officials from the mosque. He claimed to have refused telling the officials who were members of a mosque committee that he did not believe in Islam. He claimed to have refused and alleged at hearing that donated funds were misappropriated. The Tribunal found the applicant's evidence in relation to his claimed refusal to provide donations and his claim to have told mosque officials that he did not believe in Islam and that it was a lie not to be credible. His testimony was wholly unpersuasive on this point. His evidence presented as rehearsed and lacked supporting detail. He did not for example relate the reaction to what he claimed to have said, on a subject which undoubtedly would have inspired an intense negative reaction from committee members of a mosque. His testimony did not convey the strength of conviction in opposing Islam such that that there is a real chance he would come to the adverse attention of the authorities or other potential agents of harm in Iran. Despite claiming to voice opinions opposing Islam, he continued to run his business until a short time before departing Iran, despite it being located next to a mosque, and despite his claims to have continued to voice opinions against Islam. The Tribunal finds these claims simply not to be credible. Further, he claimed to be detained by the Etilaat for eight days after having voiced anti-Islamic opinions, and that he faced serious mistreatment in detention. Despite this claim, he claimed to have been released after eight days in detention. Further, although claiming to have been detained and tortured for eight days he required no medical treatment. No independent documentary evidence was provided in relation to his detention either in the form of medical evidence or evidence of his arrest. The Tribunal finds it not to be credible that had the applicant voiced opinions against Islam as claimed that he was detained for eight days and tortured and then would be released by the Etilaat after eight days in detention. It does not accept that the applicant voiced antiIslamic opinions for some years yet continued to operate a motorcycle repair business located adjacent to a mosque.
56. The Tribunal finds the applicant not to be credible on the central element of his claim that he spoke out against Islam in Iran.
57. The Tribunal next considered the applicant's claims to have escorted … [opposition political figures] during the 2009 elections. He has no security training and worked as a motorcycle mechanic albeit he has trained as a forklift operator. The Tribunal finds it wholly implausible that the applicant as a motorcycle mechanic would without any screening, be included in the security detail of the motorcades of the candidates for … [very senior political offices in] Iran on the recommendation solely of a friend whom he claimed was involved in the campaign. The applicant provided no detail of his claimed role as an escort, he had no political motivation for acting as an escort, and did not even bother to vote in the elections. The Tribunal finds the applicant's evidence to have been an escort for … [opposition political figures] not to be credible. The Tribunal further finds that the applicant did not come to the adverse attention of the authorities in Iran for having been an escort for … [opposition political figures] during the 2009 elections.
The Tribunal also found that the applicant’s credibility was so undermined that there was no evidence to support a finding that the applicant was a refugee on Convention grounds: CB 301 at [64].
In relation to the above findings the Tribunal was entitled to form a conclusion that the applicant was not a credible witness. Adverse credibility findings might involve jurisdictional error where they deny an applicant procedural fairness or are made on an illogical or unreasonable basis: CQG15 v Minister for Immigration & Border Protection & Anor [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [36]-[44] per McKerracher, Griffiths and Rangiah JJ. That is, the error must be one going essentially to the jurisdiction of the Tribunal: SZSHV v Minister for Immigration & Border Protection [2014] FCA 253 at [27]-[31] per Flick J. Otherwise, findings as to an applicant’s credibility, including adverse credibility findings, are, generally, a matter for the Tribunal: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J.
The Tribunal’s adverse credibility findings were based on rational grounds and followed a consideration of the matters which were logically probative of the issue of credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 559 per O’Connor, Branson and Marshall JJ.
The applicant alleges that the Tribunal’s assessment of credibility may have been different if the Tribunal properly considered:
a)evidence before the Delegate that the applicant was, on a further 10 occasions, detained, beaten and harassed; and
b)the IHMS records.
As a matter of causation, the matters considered by the Tribunal at CB 298-299 at [55]-[57] were the basis upon which the applicant claimed to have been detained, beaten and harassed. Nothing in the applicant’s evidence to the Delegate regarding the additional 10 detentions or in the IHMS Records provides a basis for impugning these findings. The Tribunal did not disbelieve the applicant’s claims concerning the additional 10 detentions because the Tribunal mistakenly thought that the applicant made this claim for the first time at the Tribunal hearing when in fact he had made the claim to the Delegate. Rather, the Tribunal found, and relied upon the fact that the applicant had not made this claim in his statutory declaration (at CB 97-99) which accompanied his Protection Visa application. The Tribunal did not believe the applicant’s explanation that he had told his migration agent about the additional 10 detentions, but that they were not included in his statutory declaration: CB 299-300 at [58].
The applicant’s statutory declaration contains a declaration by an interpreter that the contents of the statutory declaration were accurately and completely interpreted from the English language to the applicant. If, as the applicant claims, he had advised his migration agent of the 10 additional detentions and beatings, the applicant would have known that they had not been included in his declaration, and would have sought to have the statutory declaration amended. It was therefore plainly open to the Tribunal to find that the applicant’s explanation as to why the 10 additional incidents were not included in the statutory declaration was not credible. The Tribunal clearly considered the applicant’s claim concerning the 10 additional detentions as an integer of the applicant’s claim, but rejected it for the reasons which it gave. That was a conclusion reasonably open to the Tribunal.
In relation to the IHMS records, the applicant refers to what the Tribunal said at CB 298-299 at [55]. The applicant relies upon what was there said for his contention that the Tribunal was provided with the IHMS records, and that the applicant’s representative drew the Tribunal’s attention to the IHMS records. That contention is misconceived. The Tribunal at CB 298-299 at [55] refers to there being no independent documentary evidence of the applicant’s claimed initial arrest, detention and beatings in 2006, and his claim that despite being tortured for eight days he required no medical treatment. There is nothing in the IHMS records: CB 280-285, that provides independent evidence of the claimed 2006 detention and beatings.
Finally, the fact that the Tribunal did not specifically refer to the applicant’s evidence to the Delegate regarding the additional 10 detentions or the IHMS Records, does not demonstrate that the Tribunal failed to consider that evidence. Section 430(1)(d) of the Migration Act requires only that the Tribunal’s written statement refer to the evidence or any other material upon which the Tribunal’s findings of fact were based. Section 430(1)(d) of the Migration Act does not require the Tribunal to set out all of the evidence and material relied upon by an applicant.
In all the above circumstances it is not reasonably arguable that there was jurisdictional error by the Tribunal by reason of its alleged failure to consider, or properly consider, the applicant’s claim regarding the 10 additional detentions and beatings or the IHMS records.
Recent fabrications
The applicant submitted that the Tribunal concluded the applicant’s claimed further 10 detentions were a recent invention or recent fabrications.
The Tribunal did not find that the claimed additional 10 detentions were recent inventions or recent fabrications. The Tribunal found the applicant’s explanation as to why the claimed additional 10 detentions were not referred to in his statutory declaration to be implausible, and therefore not credible. That the applicant told both the Delegate and the Tribunal that he had been the subject of 10 additional detentions is logically irrelevant to the Tribunal’s conclusion as to why it disbelieved this claim. The credibility finding was open to the Tribunal and cannot arguably be said to disclose error.
It is therefore not reasonably arguable that the Tribunal constructively failed to exercise its jurisdiction or failed to take into account a relevant consideration by not properly considering the applicant’s evidence to the Delegate regarding the additional 10 detentions.
IHMS Records
The IHMS Records indicate that in June 2012 the applicant reported injuries to his wrist and left chest from a beating in early 2012 and that on 11 June 2012 the assessing officer found tenderness over the applicant’s left chest wall. In his 22 February 2013 submissions to the Tribunal the applicant claimed that the IHMS Records were consistent with his account of having been beaten in January 2012: CB 207-208. The Court notes that even if it is assumed that the Tribunal had considered and accepted that the IHMS Record of 11 June 2012: CB 280, which recorded that the applicant had “Tender left posterior chest wall over muscle groups”, this evidence did not affect, and could not have affected, the Tribunal’s conclusion that the claim was not credible. The IHMS record is only evidence that as at 11 June 2012 the applicant had tenderness in his left chest area, and is not evidence as to the actual cause of that tenderness.
The Tribunal expressly rejected the applicant’s account of the January 2012 beating on the basis that it was inherently implausible because of the significant distance that the applicant was from his home when he said he was “accosted”: CB 300 at [60], and implicitly on the basis of its findings that the applicant did not voice anti-Islamic opinions or escort opposition political candidates: CB 298-299 at [55]-[57].
The Tribunal Decision does not refer to the IHMS Records. The Tribunal was not however obliged to refer to the IHMS Records as it had clear bases for rejecting the applicant’s account of the January 2012 beating. Section 430(1)(d) of the Migration Act did not require the Tribunal to state that it preferred its view of the implausibility of the January 2012 beating claim and the applicant’s credibility over any countervailing support which the applicant sought to draw from the IHMS Records: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46]-[47] per French, Sackville and Hely JJ. Having reached a firm conclusion as to the applicant’s credibility, the Tribunal was entitled to proceed on the basis that no corroboration could undo the consequences for the case put by the applicant of a conclusion that the case comprises lies by him: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165, 198 ALR 59, 73 ALD 1 (2003) 198 ALR 59 at [49] per McHugh and Gummow JJ. In any event, as noted at [71] above, the IHMS Records are not sufficiently salient to assist the applicant’s case. In the Court’s view it is not reasonably arguable that the Tribunal’s failure to expressly refer to or consider the IHMS Records gives rise to jurisdictional error.
Conclusion – grounds 1 and 2
In relation to grounds 1 and 2 the Court has independently formed the view, for the purposes of the Extension of Time Application, that the grounds of the Proposed Amended Judicial Review Application are not reasonably arguable, or at the very best for the applicant, are weak. In the circumstances, the merits of grounds 1 and 2 do not outweigh the balance of the other factors weighing against the grant of an extension of time.
The interests of the administration of justice
In assessing the “interests of the administration of justice” the Court notes that the interests concerned relate to the “administration of” justice, and not just the interests of justice. In this context “administration” means “management”: Concise Oxford Dictionary, 7th Edn, Oxford, Oxford University Press, 1984) at page 13, and thus in s.477(2) of the Migration Act and r.44.05(2)(c) of the FCC Rules the Court’s attention is directed to the narrower consideration of the interests of the management of justice: Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28] per Lucev FM, that is the management by the Court of the proceedings pending before the Court (and thus includes consideration of case management principles: as to which see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The insertion of judicial review applications made out of time, and as here, very significantly out of time, into an already busy and further burgeoning migration list in the Perth Registry of this Court (and the Court generally), contributes to delay and difficulties with case management. It means that applicants who have filed their judicial review applications on time are disadvantaged by delays in the hearing of judicial review applications, many of which are listed for hearing many months, and in many cases, more than a year and up to three years, after their judicial review application is filed. In those circumstances it is not in the interests of the administration of justice for time to be extended in this case.
Conclusion on Extension of Time Application
The Court has concluded that
a)the length of the 469 day delay in making the Proposed Amended Judicial Review Application, is such that the delay alone in this case is a sufficient basis for dismissal of the Extension of Time Application;
b)the length of the delay in making the Proposed Amended Judicial Review Application, together with the failure to adequately explain that delay, are taken together, also a sufficient basis for dismissal of the Extension of Time Application;
c)the length of the delay in making the Proposed Amended Judicial Review Application, together with the failure to provide an adequate explanation for that delay, and the very significant prejudice to the Minister, are taken together, also a sufficient basis for dismissal of the Extension of Time Application;
d)the grounds of the Proposed Amended Judicial Review Application are not reasonably arguable and have no reasonable prospects of success, and the Court should not therefore extend time: SZSDA at [39] per Foster J; MZZIV at [5] per Mortimer J, but, even if the Proposed Amended Judicial Review Application was arguable and had reasonable prospects of success, the Court, in the exercise of its discretion under s.477(2) of the Migration Act, finds that the combination of factors referred to in (a), (b) and (c) of this paragraph, would warrant dismissal of the Extension of Time Application in any event, and thus even if the applicant had a good case it would be defeated by the time limitation: Brisbane South Regional Health Authority CLR at 553 per McHugh J; Tran at [38] per Wigney J; and
e)further, the Court is not persuaded, and particularly so having regard to the findings in (a), (b) and (c) of this paragraph, and the notoriously heavy and ongoing case load in the Perth Registry of this Court, that it would be in the interests of the administration of justice under s.477(2) of the Migration Act to extend time in this case.
It follows that there should be an order that the applicant’s Extension of Time Application under s.477(2) of the Migration Act be dismissed.
Conclusions and orders
The Court has concluded that for the reasons set out at [12]-[77] above, the applicant’s Extension of Time Application under s.477(2) of the Migration Act is to be dismissed, and there will be an order accordingly. In circumstances where the Extension of Time Application has been unsuccessful it is unnecessary to make a further order that the application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship & Anor [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; WZASQ at [34] per Judge Lucev.
The Court will also make an order amending the name of the second respondent to read “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 eighty-one (82) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 16 August 2019
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