WZAWB v Minister for Immigration & Anor
[2016] FCCA 1345
•20 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAWB v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1345 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time to file application for judicial review – consideration of factors. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.05 High Court Rules 1952 (Cth) Migration Act 1958 (Cth), ss.5, 5E, 36(2)(a) and (aa), 36(2B)(c), 65, 91R, 189, 197C, 198, 441A, 441B, 441C, 441G, 474, 476, 477 Migration Regulations 1994 (Cth), reg.5.35AA |
| Cases cited: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 Moana v Minister for Immigration & Border Protection [2015] FCAFC 54 SZSSJ v Minister for Immigration & Border Protection [2014] FCAFC 143; (2014) 231 FCR 285 SZSSM v Minister for Immigration & Anor [2013] FCCA 1489 |
| Applicant: | WZAWB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 62 OF 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 11 May 2015 |
| Date of Last Submission: | 11 May 2015 |
| Delivered at: | Perth |
| Delivered on: | 20 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Howard SC and Mr DV Blades |
| Solicitors for the Applicant: | King & Wood Mallesons |
| 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
The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
That the applicant’s application under s.477(2) of the Migration Act 1958 (Cth) (“Migration Act”) for an extension of time in which to lodge an application under s.476 of the Migration Act be dismissed.
The injunction issued on 23 February 2015 be discharged.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 62 OF 2015
| WZAWB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application
This proceeding commenced on 20 February 2015 by the applicant filing an application seeking:
a)review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 27 February 2013. The Tribunal Decision: see Court Book (“CB”) 168-191, affirmed a decision made by a delegate: see CB 67-76 (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Immigration & Citizenship, now the Minister for Immigration & Border Protection (“Minister”) made on 8 October 2012 to refuse the applicant a Protection (Class XA) visa (“Protection Visa”) under the Migration Act 1958 (Cth) (“Migration Act”);
b)an extension of time in which to lodge the application pursuant to s.477(2) of the Migration Act; and
c)an injunction to restrain his removal from Australia.
On 23 February 2015 the Court made orders:
a)granting an injunction restraining the Minister and officers of the Department of Immigration & Border Protection (“Department”) from removing the applicant from Australia pending determination of his application; and
b)giving directions to prepare the application, including the extension of time application for hearing on 23 March 2015, including the filing of any amended application by 5 March 2015.
On 19 March 2015, the Court made orders by consent relisting the application for hearing on 11 May 2015 and extending the time for compliance with the orders made on 23 February 2015. An amended application was filed on 11 March 2015.
At hearing on 11 May 2015 the applicant was granted leave to file in Court further amended grounds. There are five grounds plus a further ground in relation to the issue of a pre-removal clearance decision in relation to the applicant. Each of the five grounds of review in relation to the Tribunal Decision, and the ground in respect to the pre-removal clearance are set out and deal with in full below: see [115]-[157] below.
Evidence and affidavits
The applicant seeks to rely upon the following affidavits:
a)the applicant’s affidavit made on 19 February 2015 (“Applicant’s February 2015 Affidavit”);
b)the applicant’s affidavit made on 5 March 2015 (“Applicant’s March 2015 Affidavit”);
c)the affidavit of Dominique Clare Hansen made on 22 February 2015 (“Hansen’s February 2015 Affidavit”);
d)the affidavit of Dominique Clare Hansen made on 4 March 2015 (“Hansen’s March 2015 Affidavit”);
e)the affidavit of Felicity Anne Cain made on 22 February 2015 (“Cain’s Affidavit”);
f)the affidavit of Jessica Clare Bowman made on 22 February 2015 (“Bowman’s First February 2015 Affidavit”);
g)the affidavit of Jessica Clare Bowman made on 23 February 2015 (“Bowman’s Second February 2015 Affidavit”);
h)the affidavit of Jessica Clare Bowman made on 10 March 2015 (“Bowman’s March 2015 Affidavit”); and
i)the affidavit of Robert Slattery made on 9 March 2015 (“Slattery’s Affidavit”).
The Minister relies upon the affidavit of Peter John Corbould made on 23 February 2015 (“Corbould Affidavit”).
The Minister objects to:
a)paragraphs 32 to 35 and annexures JCB-18 to JCB-21 of Bowman’s First February 2015 Affidavit;
b)paragraphs 15 to 23 and annexures JCB-5 to JCB-14 of affidavit of Bowman’s March 2015 Affidavit; and
c)paragraphs 30 to 34 of the Applicant’s March 2015 Affidavit.
In relation to those objections the Minister submits that:
a)the applicant’s supplementary outline of submissions at [22]-[29], under the heading “Current situation in Afghanistan”, refer to various items of country information;
b)those submissions involve an impermissible invitation for the Court to engage in decision-making on the merits, implicitly inviting the Court to form its own conclusion as to whether there is a risk that the applicant would be harmed if returned to Afghanistan;
c)under the Migration Act the decision whether a person is owed protection obligations is reposed in the Minister and, on review, the Tribunal, and the Court has no jurisdiction to consider that issue; and
d)all of the evidence filed by the applicant that concerns conditions in Afghanistan since the Tribunal Decision is therefore inadmissible.
Other than to say that the paragraphs objected to went variously to the question of the extension of time application or the granting of relief, and the utility of granting relief, on the pre-removal clearance decision, the applicant’s submissions did not specifically respond to what was put by the Minister.
The suggestion that the Court should take into account subsequent events in an applicant’s country of origin has been expressly rejected by this Court in SZQPW v Minister for Immigration & Anor [2012] FMCA 471 at [33] per Judge Nicholls (“SZQPW”) where it was said that:
The second was that the Court should take judicial note of subsequent, and current, events in Egypt and that, given the state of claimed religious intolerance, time should be extended. Such a matter is for the Minister to consider, both at the time of the making of the application for the protection visa and at the time of removal of the applicant from Australia, and for the Tribunal to consider in the conduct of the review. I cannot see how this is relevant to the question of the administration of justice in matters of judicial review concerned with the lawfulness, and not the merits, of a Tribunal decision.
Comity between judgments of this Court in similar cases is important, particularly where the same or similar matters have already been considered. Where the issues are the same, and have already been determined, this Court ought not to re-adjudicate an issue, unless there is additional relevant material brought to the attention of the Court, or unless the Court is of the view that an earlier judgment is plainly wrong: Alvaro v Legalwest Pty Ltd [2013] FCCA 1799 at [32] per Judge Lucev; SZUDE v Minister for Immigration & Anor [2015] FCCA 60; (2015) 294 FLR 35 at [43] per Judge Driver. There is nothing in the judgment in SZQPW which suggests to the Court as presently constituted that that judgment is plainly wrong. Indeed, the correctness of the judgment in SZQPW seems obvious. As a matter of judicial comity SZQPW ought to be followed by this Court in this case.
SZQPW was referred to without disapproval in DZAFG, where having referred to SZQPW, the Court said that at [15] per Judge Harland:
That resonates with the circumstances here as there was some suggestion during submissions and certainly in the application itself, of the applicant wanting to raise issues not before the Tribunal and issues which really fall into issues of merit and not judicial review, which are quite limited.
In the Court’s view an extension of time application is not an opportunity for an applicant to put on fresh evidence or to seek from the Court different findings of fact to those made in the Tribunal Decision in relation to the substantive issue of whether or not the applicant meets the relevant criteria to be granted a Protection Visa. For the Court to utilise fresh evidence going to the merits of an application before it for judicial review, is simply to usurp the administrative decision-making role properly vested by the Parliament in the Tribunal, as to which see NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ (“NADR”); Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
As a matter of policy an extension of time application should also not be used to seek to have, or have, this Court determine the merits of an administrative decision which may have to be made in the future, and particularly so where the determination of matters of merit is vested exclusively in the Tribunal, not in this Court. A further aspect of this policy dimension is that to allow fresh evidence as to the merits of a judicial review application to be utilised in an extension of time application might encourage applicants for judicial review to delay making applications in the hope that the situation in their country of origin becomes worse so that they would be more likely to succeed on an extension of time application. Encouraging such delay is directly contrary to the intent of s.477(1) of the Migration Act.
To engage with the factual material in the manner suggested by the applicant upon an application to extend time is in the Court’s view to engage in merits review. The Court has no jurisdiction to engage in merits review, and fact-finding is within the jurisdiction of the Tribunal, and not reviewable by this Court: NADR at [9] per Heerey, RD Nicholson and Selway JJ; Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. In essence, what the applicant seeks to do, under the guise of an extension of time application, is to have this Court do what it ought not do, and that is to cross the line between judicial review and merits review: Zentai v Honourable Brendan O’Connor & Ors (No. 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 at [367] per McKerracher J (“Zentai (No. 3)”).
Background to the application
Facts
The applicant is a citizen of Afghanistan who arrived by boat without a visa as an “offshore entry person” at Christmas Island on 6 May 2012, and was taken into immigration detention: CB 68.
In a statutory declaration dated 8 July 2012: CB 33-35, the applicant provided his reasons for leaving Afghanistan, stating:
a)he was born on 31 December 1996 in Maidan Wardak province, Afghanistan, and is a Hazara Shia Muslim, with no right of entry or citizenship in any other country: CB 33 at [3]-[4];
b)his family owned a farm in the Beshood area, and faced harassment, persecution and forced displacement by the Taliban, who considered all land in that area belonged to them: CB 33 at [7];
c)in or about 2009, his father was murdered by the Taliban for being a Shia Hazara. Lacking the father’s protection the family fled to Kabul to take refuge with relatives there: CB 33 at [8]; and
d)finding that the security situation in Kabul was no better, the applicant sought refuge in Iran, but was deported back to Afghanistan. Shortly after his return to Kabul the 2011 Ashura Day killings occurred. That incident frightened him and he decided not to stay in Afghanistan any longer: CB 34 at [9]-[10].
The applicant received assistance for his Protection Visa application from Ms Jessica Schulman (“Ms Schulman”), of Malyon Andronicos Law Pty Ltd (“MAL”), based in Sydney: Bowman’s First February 2015 Affidavit at [11] and the Applicant’s February 2015 Affidavit at [5].
On 16 July 2012, with the assistance of Ms Schulman, the applicant applied for the Protection Visa: CB 2, 4-38 and 169 at [2].
On 4 October 2012 the Delegate refused the Protection Visa application and notified the applicant of the Delegate’s Decision: CB 67-80.
On 12 October 2012, the applicant lodged an application for review with the Tribunal, with Ms Schulman acting as the applicant’s migration agent: CB 86-92.
On 27 November 2012 MAL made a submission to the Tribunal: CB 148-163 (“Applicant’s November 2012 Tribunal Submissions”). The Applicant’s November 2012 Tribunal Submissions indicate that MAL acted for the applicant, who at that time was already residing in Western Australia. The Applicant’s November 2012 Tribunal Submissions set out:
a)relevant background in relation to the applicant: CB 148-149;
b)the applicability of the Refugee’s Convention in Australia: CB 149-150;
c)the applicant’s claims in relation to his fear of serious harm if returned to Afghanistan and the reasons therefor: CB 150;
d)a summary of the Delegate’s Decision: CB 150;
e)the applicant’s submission, encompassing:
i)information on the persecution of persons of Hazara ethnicity in Afghanistan: CB 151-152;
ii)the need for the applicant to travel between provinces in Afghanistan for work: CB 152-153;
iii)the targeting for persecution of the applicant on the basis of his Shia religious beliefs (specifically relating to the targeting of Shia Hazaras by the Taliban): CB 153-154; and
iv)the possible persecution of the applicant on the basis of his membership of a particular social group, being failed asylum seekers from the West: CB 154-155;
f)submissions on complementary protection issues including the arbitrary deprivation of life: CB 155-157; and
g)submissions on relocation, both to Kabul and other areas in Afghanistan: CB 157-162, including addressing the issues of life, violence and essential services in Kabul.
The Applicant’s November 2012 Tribunal Submissions were co-signed by Mr Nicholas Andronicos a director and solicitor at MAL, and a registered migration agent, and Ms Joanne Pugsley, a solicitor at MAL, and also a registered migration agent: CB 163.
On 27 November 2012 a Response to Hearing Invitation was completed: CB 137-138, and indicated that the applicant and a representative would be attending the Tribunal hearing. Attached to the Response to the Tribunal hearing invitation was a Form 956 – advice by a migration agent/exempt person of providing immigration assistance dated 8 July 2012 appointing Ms Schulman as the applicant’s migration agent, and signed by Ms Schulman and the applicant on 8 July 2012: CB 139-141.
On 28 November 2012 it appears that an officer of the Tribunal was advised that it was intended to send through the appropriate form to change the name of the applicant’s representative prior to the Tribunal hearing, that call being initiated by the Tribunal officer in response to the Applicant’s November 2012 Tribunal Submissions sent by Mr Andronicos and Ms Pugsley from MAL: CB 143.
On 29 November 2012, the applicant submitted to the Tribunal an unsigned statutory declaration stating, amongst other things, that:
a)the security situation in Kabul is very poor, and the Afghani police are not effective at protecting residents from the Taliban: CB 146 at [11]-[12];
b)the applicant’s family (mother, two brothers and two sisters) were currently living with the applicant’s uncle in Kabul, but if the applicant returned to Kabul his uncle would not be able to protect or support him forever: CB 146 at [7];
c)it will be difficult for the applicant to find work in Kabul as unemployment is very high: CB 146 at [7];
d)the applicant may have to travel outside of Kabul to find work and this will place his life at risk due to the lack of security on the roads: CB 146-147 at [7]; and
e)for reasons of his Hazara ethnicity, Shia faith and, if returned, his membership of a social grouping of returned failed asylum seekers, the applicant continues to fear for his life: CB 147 at [13] and [16].
The applicant appeared before the Tribunal in Perth on 7 December 2012. By this time Ms Schulman was no longer working at MAL and did not appear at the hearing. Rather, the applicant was represented, by telephone, by Mr Andronicos: Bowman’s March 2015 Affidavit at [10]-[11] and Annexure JCB4. The transcript of the Tribunal hearing runs to some 19 pages: Bowman’s March 2015 Affidavit, Annexure JCB4 (“Tribunal Transcript”).
At the Tribunal hearing the applicant was permitted to provide further information in writing to the Tribunal after the Tribunal hearing: see page 18 of the Tribunal Transcript at Bowman’s March 2015 Affidavit, Annexure JCB4.
On 21 December 2012 MAL sent to the Tribunal, on behalf of the applicant, further submissions (“Applicant’s December 2012 Tribunal Submissions”), covering:
a)the status of Hazara Shias in Afghanistan: CB 165-166; and
b)relocation of the applicant to Kabul: CB 166-167.
The Applicant’s December 2012 Tribunal Submissions were co-signed by Mr Andronicos, and Mr Ramtin Towdiee, a solicitor at MAL, and also a registered migration agent: CB 167.
On 12 February 2013, the applicant was granted the first in a series of bridging E visas and was released from immigration detention: Corbould Affidavit at [8].
In about February 2013 a new case worker from the Red Cross was assigned to the applicant’s case, Mrs Ruksha Appadoo (“Mrs Appadoo”): Applicant’s February 2015 Affidavit at [13].
On 27 February 2013 the Tribunal affirmed the Delegate’s Decision: CB 191 at [118].
On 28 February 2013 the Tribunal Decision was sent by facsimile to Ms Schulman at MAL as the nominated authorised recipient for the applicant pursuant to s.441G(1) of the Migration Act: CB 192-193. The Tribunal Decision was not separately provided to the applicant, although a letter addressed to him was sent with the facsimile to Ms Schulman: CB 194, nor was the applicant seemingly contacted directly by Ms Schulman to advise him of the Tribunal Decision: Applicant’s February 2015 Affidavit at [14]-[15]; Applicant’s March 2015 Affidavit at [19]-[24].
Sometime between late February and 12 March 2013 Mrs Appadoo called the applicant to a meeting in which they telephoned a person at MAL, who informed the applicant that his Protection Visa application had again been refused. Mrs Appadoo informed the applicant that a further application for review could be made, but that a lawyer would be required. Mrs Appadoo offered to help find legal representation: Applicant’s February 2015 Affidavit at [14] and [16] and Bowman’s First February 2015 Affidavit at [22].
The applicant further says that he later contacted Mrs Appadoo, who informed him that she had not been able to obtain legal representation, that she was no longer the case worker for the applicant, that the applicant would no longer have a case worker, and that the applicant needed to contact the Department. Following this the applicant attempted to contact Ms Schulman via telephone, but was not able to make contact and his calls were not returned: Applicant’s February 2015 Affidavit at [17] and [19]-[21].
The applicant accepts that by 12 March 2013 he was informed that his Protection Visa application to the Tribunal had failed: see Applicant’s Amended Outline of Submissions at [10]; Applicant’s February 2015 Affidavit at [14].
MAL sent a copy of the Tribunal Decision to the applicant by letter dated 14 March 2013: Corbould Affidavit at [11] and [16]-[17] and Hansen’s March 2015 Affidavit at [5(b)], but it may be that the applicant did not receive, or at least does not recall receiving, this letter: Applicant’s March 2015 Affidavit at [19]
On 15 April 2013 Law Access (Law Access Pro Bono Referral Scheme, Law Society of WA) received a request for assistance on behalf of the applicant, which annexed a copy of the Tribunal Decision: Hansen’s March 2015 Affidavit at [5(a)] and Annexure DCH 1.
On 19 July 2013 the applicant’s request for assistance was refused, it being assessed as having “no merit”: Hansen’s February 2015 Affidavit at [10]: Hansen’s March 2015 Affidavit at [5(d)] and Annexure DCH 4. The email advising the applicant of the refusal of his request for referral through Law Access (“Law Access Refusal Email”) included the following paragraphs:
The Assessor has found that there are insufficient prospects of a successful judicial review of the Refugee Review Tribunal decision, to warrant pro-bono referral. That is, we will not be able to find a no-charge lawyer to act for you in an application to the Federal Circuit Court.
Please note, that this does not stop you from making your own application to the Federal Circuit Court for review. I have attached a copy of the Federal Circuit Court brochure about judicial review of migration decisions. You can also hire a lawyer at your own expense to assist you.
The applicant understood by this time that his former lawyers were not assisting him with an application to challenge the Tribunal Decision, and he says that “I did not know how to find another lawyer and I did not have any money to pay for a lawyer”: Applicant’s February 2015 Affidavit at [22].
In 2014, the applicant attended several meetings with the Department during which he was told that he needed to obtain his own legal representation, and that the terms of his bridging visa prevented him from working: Bowman’s First February 2015 Affidavit at [23]; Applicant’s February 2015 Affidavit at [25].
On 18 December 2014, shortly after the expiry of his last bridging visa, the applicant was detained in immigration detention under s.189(1) of the Migration Act: Corbould Affidavit at [12].
On 6 February 2015, an officer of the Department carried out a “pre-removal clearance” assessment in relation to the applicant’s case, and that assessment was approved by more senior officers of the Department on 9 February 2015 (“PRC Decision”): Corbould Affidavit at [13] and [19]-[23].
On 13 February 2015, the applicant was issued with a “Notice of Intention to Remove from Australia”: Corbould Affidavit at [14] and [25]-[26]. Arrangements were made by officers of the Department for the applicant to be removed from Australia on 24 February 2015: Corbould Affidavit at [16] and [31].
While in immigration detention, the applicant received help from Ms Felicity Cain, a volunteer for the organisation Coalition for Asylum Seekers, Refugees and Detainees (CARAD), and with her assistance made a further application to Law Access dated 16 February 2015: Cain’s Affidavit at [10]-[12].
On 18 February 2015, Law Access secured representation for the applicant through his present representatives: Hansen Affidavit at [15].
Extension of time application
Pursuant to s.477(1) of the Migration Act the applicant was required to make his application for review of the Tribunal Decision within 35 days of the date of the Tribunal Decision, that is by 3 April 2013. The application before the Court was not filed until 20 February 2015. It is therefore 687 days outside of the 35 day period permitted by the Migration Act.
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.
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) provides that, relevantly, such an 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. The applicant filed such an affidavit: Applicant’s February 2015 Affidavit.
Generally, in cases of an application for an extension of time, the Court considers the factors identified in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 (“Hunter Valley”), relevantly:
a)whether, an acceptable explanation for the delay being offered, it would be fair and equitable in all the circumstances to extend the time;
b)any prejudice suffered by the respondent resulting from the delay;
c)the merits of the substantial application; and
d)considerations of fairness between the applicant and other individuals in a like position, taking into account the wider public interest.
In regard to applications under s.477(2) of the Migration Act, this Court has held that an extension of time will only be granted where:
a)the applicant so applies in the correct form; and
b)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 (“Tang”), WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 (“WZASQ”).
It is generally accepted by this Court that a non-exhaustive list of factors to be considered in determining whether an extension is in the interests of the administration of justice includes:
a)the extent of any delay;
b)the reasons for such delay;
c)prejudice to the respondents;
d)impact on the applicant should time not be extended;
e)interests of the public at large;
f)merits of the proposed substantive application; and
g)the general discretion of the court.
SZRUG v Minister for Immigration & Anor [2013] FCCA 142 at [8] per Judge Nicholls (and cases there cited); WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [7] per Judge Lucev; MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [6] per Judge Jones (“MZZRO”); SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 at [21] per Judge Lloyd-Jones; BZAER v Minister for Immigration & Anor [2014] FCCA 813 at [4] per Judge Jarrett.
Length of and reasons for the delay
Applicant’s submissions
The applicant concedes that there has been a significant delay in bringing the application. The applicant nonetheless submits that, in all the circumstances of the case, the interests of the administration of justice warrant an extension being granted.
The applicant was aware in 2013 and 2014 through meetings with officers of the Department and with his Australian Red Cross case worker that he would not receive a Protection Visa, but he was not made aware of the reasons for the Tribunal’s Decision, this being the basis for commencing judicial review proceedings in this Court, until 19 February 2015: Applicant’s February 2015 Affidavit at [15].
The circumstances that led to this failure of notice are unclear. There is evidence before the Court that:
a)Ms Schulman left the employ of MAL in November 2012: Bowman’s First February 2015 Affidavit at [14]-[15]);
b)the applicant was represented at the Tribunal hearing on 7 December 2012: CB 174 at [37]-[38]; and
c)MAL was in a state of transition as at January 2013 when a co-director formed another firm Andronicos Lawyers: Bowman’s First February 2015 Affidavit at [14]-[15].
The Tribunal’s sending of the Tribunal Decision to Ms Schulman is not necessarily indicative of jurisdictional error, given that it appears the Tribunal Decision was sent to the person (that is, Ms Schulman) who was then the applicant’s ‘authorised recipient’ for the purposes of ss.441G and 441B(5) of the Migration Act. Nevertheless, there is a possible breach by the abovenamed persons of their professional obligations under the Migration Agents Code of Conduct, clause 3.5 of which provides (emphasis added):
If a registered migration agent changes his or her address, telephone number or any other details that are recorded on the Register of Migration Agents, the agent must give a written notice to the Department, the Authority, any review authority and all current clients of the agent:
(a) in advance; or
(b) not later than 14 days after the change or changes if advance notice would be unreasonable in the circumstances.
In SZVIX v Minister For Immigration & Border Protection [2015] FCCA 268 (“SZVIX”), a somewhat analogous situation occurred where an applicant, who had a general understanding of the previous judgment of Judge Nicholls in a related matter (delivered ex tempore in his presence via interpreter), but did not possess written reasons, sought an extension of time under s.477 of the Migration Act. Relevantly, Judge Manousaridis held at [7] that a consideration of the interests of the administration of justice would include whether the applicant was to blame for not having received reasons for the judgement. Holding that the applicant in that case was present not only when judgment was delivered, but when orders were made for it to be provided to him, and thus could well have made his own inquiries, the Court in that case was not so satisfied.
The Tribunal did not deliver oral reasons at the date of the first hearing but, as is usual practice, reserved its decision to be provided via written reasons later. The applicant had no conception of the reasons for the Tribunal Decision being made, was not contacted by Ms Schulman, and was unable to effect such contact himself. Further, given his lack of English proficiency, guidance and familiarity with the Australian legal system, he faced significant hurdles in making his own inquiries.
In Hunter Valley, Wilcox J held at FCR at 351 that, although a failure of a party’s solicitor does not in itself amount to an excuse for delay, the responsibility of a solicitor to act properly and promptly is highly material, and “it would be erroneous to treat the fault of the solicitors as if it were the direct default of the client”, particularly where that client is otherwise blameless.
The applicant contends that, as he had no understanding of the reasons given for the Tribunal Decision, he through no fault of his own had no real prospect of obtaining constructive legal advice on any potential issues raised, leading to the present delay.
The applicant arrived in Australia in 2012 as an unaccompanied child. While the exact age of the applicant is in question due to Afghani-Gregorian calendar conversion, incomplete records and translation difficulties, the applicant was born at some point between 1994 and 1996, making him at most 18 years old at the time of the Tribunal hearing. The Delegate’s finding that the applicant was born in 1993 was not accepted by the Tribunal.
The applicant states he was 16 years of age at the time of his application for a Protection Visa on 16 July 2012: Applicant’s March 2015 Affidavit at [6]. If this is accepted, assuming the earliest possible birth date (17 July 1995), the applicant would have been 17 years of age at the time of the Tribunal Decision.
The Tribunal heard that the applicant himself operated under some misapprehensions as to the circumstances of his birth: CB 173 at [35], explaining the inconsistencies in his account of his age: CB 174 at [41]. The Tribunal found the applicant to be a credible witness with no intention to mislead: CB 188 at [104].
The applicant has little English proficiency and arrived in Australia without his family, any significant funds or any particular ties to the local community. While the applicant has made significant efforts since his release into the community to build relationships and integrate into Australian society: Applicant’s February 2015 Affidavit at [27], he has little formal schooling or understanding of the operation of the Australian legal system.
As such, and as a minor, the applicant relied heavily on the guidance given to him by his case worker Mrs Appadoo and lawyer Ms Schulman. The applicant was thus particularly vulnerable in a situation where:
a)Mrs Appadoo was not able to obtain legal representation; and
b)Ms Schulman or her employer MAL had apparently failed to notify the Tribunal and the applicant of a change in authorised recipient.
The applicant or someone acting on his behalf attempted to secure further legal representation through Law Access in April 2013, but lacking support and guidance, he was unsuccessful until the further approach to Law Access in February 2015.
At the time of the Tribunal Decision the applicant was dependent upon the guidance of others, and with little ability to effectively prosecute his application of his own accord. Upon receiving legal representation and a competent and correct understanding of the status of his case, the applicant both personally and by his representatives has made every effort to prosecute the matter fully and expediently.
In DZAFG v Minister for Immigration & Anor [2015] FCCA 168 (“DZAFG”), the Court dealt with a longer delay of 812 days and concluded that if the applicant had been able to establish an arguable case then that would have outweighed, “the inadequacy of that delay”: DZAFG at [34(a)] per Judge Harland.
In SZTDM v Minister for Immigration & Anor(2013) FCCA 1130 (“SZTDM”), the Court rejected the Minister’s submission that the reasons for delay were so unmeritorious that even if there were some merit in the substantive application, the extension for time should not be granted: SZTDM at [20] per Judge Cameron. Because of the discretionary nature of the decision for the Court and that when considering whether or not it is in the interests of the administration of justice to extend time, the Court thought that in a case where the primary application has merit, justice would require that consideration be given to the priority of that as opposed to the delay.
In SZOLM v Minister for Immigration & Anor [2011] FMCA 305 (“SZOLM”) an application was brought 475 days out of time. The applicant in that matter argued at [39]-[42] per Cameron FM that the delay was reasonably explained, relevantly, by a paucity of advice and poor conduct on the part of that applicant’s legal representation and migration agent, in circumstances where the applicant himself continued efforts to prosecute the matter. The Court accepted that the applicant acted promptly on the advice given, and that where an applicant is not in possession of all relevant information they may not be able to make fully informed decisions and as such delay may result: SZOLM at [46] per Cameron FM.
In the present matter, the applicant not only received no advice at all, but was not made aware of the reasons for the Tribunal’s Decision, in circumstances where he was highly reliant upon Ms Schulman and MAL. Once informed via telephone of the Tribunal Decision, the applicant relied upon the offer of his case worker Mrs Appadoo to assist him in locating alternative representation. When Mrs Appadoo was unable to find him assistance, he attempted to contact Ms Schulman himself, and then when that failed it appears that he sought to secure alternate representation through Law Access.
The applicant thus submits that, while the delay is extensive, it is adequately explained, and taking into account the circumstances of the case, the interests of justice require that an extension be allowed.
In the present case, while the delay is significant, it is respectfully submitted that, unlike DZAFG:
a)there is a reasonable explanation for that delay; and
b)there are well-articulated grounds of judicial review, rather than a bare affidavit and annexing of the Tribunal's decision and arguments that are more properly merits review.
Minister’s submissions
The Minister submits that:
a)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. The “interests of the administration of justice” is different to “the interests of justice”: see WZANW v Minister for Immigration & Anor [2009] FMCA 1075 at [25] per Lucev FM (“WZANW”); WZANX v Minister for Immigration & Anor [2009] FMCA 1010 at [11] per Lucev FM (“WZANX”);
b)in WZANX at [13] per Lucev FM, this Court observed, in refusing an application for extension of time, that there was “a long delay, more than twice the specified statutory period”. Here, by contrast, the application was nearly twenty times the specified statutory period;
c)in Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”), McHugh J discussed the principles governing applications for the enlargement of time under the then High Court Rules 1952 (Cth). Those principles are relevantly analogous to those that apply to applications for an extension under s.477 of the Migration Act. In summary, McHugh J said in Marks at [15]-[17] that:
i)the grant of an enlargement of time is not automatic;
ii)a case ‘would need to be exceptional’ before the time for commencing proceedings was enlarged by many months;
iii)an extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension;
iv)in deciding whether or not to enlarge time, the Court may take into account the explanation for the delay in commencing proceedings, and the applicant’s prospects of success in the proceedings;
v)the constitutional writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions; and
vi)the “rules of court must prima facie be obeyed”, and:
The periods for applying for mandamus and certiorari 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 the proceedings in this Court. (emphasis added)
Marks at [16] per McHugh J.
d)in a similar vein, is Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1; CLR at 552-553 (“Brisbane South Regional Health Authority”), where after examining the rationale for limitation provisions, McHugh J CLR at 553 explained that:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated … A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
e)having regard to the above principles, in circumstances where the limitation period selected by the legislature in order to balance the various competing interests is just 35 days, and where an applicant has delayed in commencing proceedings for nearly two years, it would require an extraordinary or exceptional case before an extension of time should be granted. It would be a fundamental error to proceed in the way suggested by the applicant, which in effect invites the Court in deciding whether to grant an extension of time to put the length of the delay aside, and to focus primarily on the merits of the proposed challenge or on questions of prejudice to the respondents. To approach the issue in that way would ignore the balance of public interest that Parliament has struck in enacting s.477(1) of the Migration Act;
f)the length of the delay here is so great that the merits of the application are of limited significance. If an “arguable case” is sufficient to outweigh very lengthy delay, then limitation periods are deprived of any meaningful effect. They become simply an additional bar to cases that would fail in any event. As such, they would do nothing more than produce additional, but ultimately pointless, legal arguments, the only effect of which would be to increase costs. That is not how limitation periods work. As McHugh J recognised in Brisbane South Regional Health Authority, where the period selected by Parliament as the appropriate limitation periods is exceeded, the limitation period may operate so that a “good cause of action is defeated”. A limitation period prevents a respondent from being required to litigate a claim that is brought substantially out of time, irrespective of its merits, at least unless the case is shown to be of an “exceptional” kind;
g)that is not to deny that it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties if an extension of time is granted or refused: Gallo v Dawson (1990) 64 ALJR 458; (1990) 93 ALR 479. But, as was said in Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [30]-[31] per Wigney J (“Tran”) (in refusing a request for an 18 month extension of time to challenge a visa cancellation decision):
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. (emphasis added)
h)on the facts of this case, there is no satisfactory, let alone persuasive, explanation for the full extent of the delay of 687 days: see Tran at [38] per Wigney J;
i)the applicant was not in immigration detention at the time of the Tribunal Decision. The evidence filed by the applicant indicates that he was advised of the negative Tribunal Decision by at least 12 March 2013: Applicant’s February 2015 Affidavit at [14] and Applicant’s March 2015 Affidavit at [13] and [22], and that he does not dispute that he received a letter from MAL dated 14 March 2013 attaching a copy of the Tribunal Decision: Applicant’s March 2015 Affidavit at [14]-[15] and [19]-[21];
j)the evidence does not support the applicant’s submissions that he did not receive the actual reasons for the Tribunal Decision until February 2015. The applicant, or his case worker, made an application to obtain legal assistance through Law Access in April 2013, and the applicant accepts that a copy of the Tribunal Decision was included with that request: Applicant’s Supplementary Outline of Submissions at [15]; Hansen’s March 2015 Affidavit. In those circumstances, the evidence that has been filed about the applicant not recalling having seen the Tribunal Decision, and about his changes of address, is irrelevant. On his own evidence, he both knew the result of his application to the Tribunal, and had access to the Tribunal Decision, and therefore its reasons, by April 2013 (whether or not he read those reasons);
k)in any event, the Tribunal Decision was faxed to the applicant’s authorised recipient, Ms Jessica Schulman of Malyon Andronicos, on 28 February 2013: CB 89 and 193. The Tribunal Decision was therefore taken to have been received by the applicant at that time: ss.441A(5), 441C(5) and 441G(2) of the Migration Act. The effect of those provisions is that it is not open to the applicant to argue that the reasons were not received: Le v Minister for Immigration & Citizenship[2007] FCAFC 20; (2007) 157 FCR 321 at [29] per Emmett, Allsop and Middleton JJ; NBBL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1045; (2006) 152 FCR 592; MZXRE v Minister for Immigration & Citizenship [2009] FCAFC 82; (2009) 176 FCR 552 at [77]-[78] per Graham J; SZOZO v Minister for Immigration & Citizenship [2011] FCA 944 at [22] per Reeves J. Accordingly, not only is the sending of the Tribunal Decision to the authorised representative “not necessarily indicative of jurisdictional error”: Applicant’s Amended Outline of Submissions at [29], it is plainly not indicative of error of any kind;
l)the applicant’s problem was not that he did not know about the Tribunal Decision, but that he was unable to obtain legal assistance in challenging the Tribunal Decision. His evidence is “I did not know how to find another lawyer and I did not have any money to pay for a lawyer”: Applicant’s February 2015 Affidavit at [22]. It is well established that reasons of this kind are not a sufficient justification for failure to lodge an application for review within time: Tran at [35] per Wigney J;
m)a delay of the magnitude of 687 days is so inordinate that it is, by itself, a compelling reason to refuse the application for an extension of time. In Jarosek v Department of Immigration [2006] FMCA 1048 at [27] per Walters FM, the Federal Magistrates 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”. It was recognised that that delay was “itself a sufficient basis” to refuse the extension of time. In WZASQ at [14] per Judge Lucev, the Court described a delay of 74 days in filing the application to the Court as “substantial”. In WZANW at [28] per Lucev FM, it was said that 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) of the Migration Act where there is no reason for the delay;
n)the delay of 687 days in filing the application, in the absence of an extremely powerful explanation, is itself a sufficient basis to refuse the application for an extension of time. Here, not only is there no such powerful explanation, there is no satisfactory explanation at all. The evidence shows that, at the time of the Tribunal Decision, the applicant was advised of the Tribunal Decision by his then legal representatives, and that he made an unsuccessful application to Law Access for assistance with respect to that decision. There is then a delay of over 18 months that is entirely unexplained; and
o)the unexplained delay of that length has the consequence that the Court should refuse the extension of time without any need to examine the merits of the Tribunal Decision.
Consideration – length of and reason for the delay
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, must have regard 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 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 at [35] per Gilmour J (dismissing 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 (“SZANS”); 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 cases such as DZAFG, SZTDM and SZOLM, where, as the applicant’s submissions suggest, this Court (or its predecessor the Federal Magistrates Court) has made observations that time might be extended notwithstanding extensive delay merely because the 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.
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.
The Court also notes that both DZAFG and SZTDM were extempore decisions given in relation to injunction applications to prevent a person being removed from the Commonwealth, and in DZAFG in circumstances where no application for review had been considered by the then Refugee Review Tribunal. In neither DZAFG nor SZTDM was any reference made to Marks or Brisbane South Regional Health Authority. The observation in both SZTDM at [20] per Judge Cameron and DZAFG at [34(a)] per Judge Harland to the effect that because the principle 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.
In SZOLM reference was made to Brisbane South Regional Health Authority, but not in the context of the length or reason for the delay, but rather the prejudice arising therefrom: SZOLM at [48] per Cameron FM. No reference was made to Marks. Furthermore, SZOLM is distinguishable on the facts: there the Court held that it was an acceptable reason for delay to not institute judicial review proceedings on the basis of incomplete information resulting in a decision to pursue Ministerial intervention which was not fully informed, and as a consequence the applicant was considered to have not chosen one course (Ministerial intervention) in preference to another (an application for judicial review), and was seen to have acted promptly on the advice that he was given whether that advice was to pursue Ministerial intervention or to initiate proceedings in this Court: SZOLM at [46] per Cameron FM. Thus, at least in some manner, the applicant acted promptly in taking some form of legislatively contemplated action in an endeavour to deal with his immigration status. That is not the case here.
The other aspect of SZOLM which it is necessary to comment upon is the dichotomy that it suggests between Ministerial intervention and making an application for judicial review, and that poor advice to pursue a Ministerial intervention application does not preclude the subsequent pursuit of an application for judicial review. In the Court’s view this is inconsistent with the manner in which both this Court and the Federal Court have generally approached that issue.
An application for ministerial intervention does not provide an explanation for the delay in making an application for judicial review to this Court. The relevant law was summarised by the Full Court of the Federal Court in M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520; (2004) 82 ALD 24 (“M211 of 2003”) as follows:
22. In Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 Weinberg J considered an application for an extension of time in which to apply for mandamus and certiorari. After referring to Marks his Honour said at [10] and [12]:
In the present case, the decision of the RRT, which is impugned, was made on 26 November 1999. The application to the High Court for an order nisi was not made until approximately sixteen months later, on 29 March 2001. The only explanation proffered for the delay was the request that the applicants made, in October 2000, some eleven months after the RRT's decision, for ministerial intervention pursuant to s 48B and s 417 of the Act. …
In my view, the delay has not been adequately explained. I agree entirely with the comments of von Doussa J regarding this very same issue in Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at pars [8]-[10]. There was nothing to prevent the applicants from pursuing their application for constitutional writs in the High Court while, at the same time, seeking ministerial intervention. The absence of any adequate explanation would, of itself, be sufficient to refuse the application for an extension of time.
23 In Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1331 Weinberg J again dealt with a s 417 request put forward as an explanation for the delay in applying for constitutional writs. His Honour said at [18]-[20]:
It was submitted on behalf of the respondent that the applicant's request under s 417 should be viewed as an indication that he was prepared to accept the RRT's decision as correct, and that rather than challenge that decision by way of judicial review, he had elected to take another course. In making that submission, counsel relied upon a series of decisions of this Court … .
In Applicant A2 of 2002, von Doussa J said of the applicant that:
having taken that other course, [to make an application under s 417, and await a decision in respect of that application] in my opinion he must live with the consequence of the delay that occurred.
This statement by von Doussa J crystallised the legal consequences of what Gray J, in Re Batuwantudawa, characterised as ‘inconsistent courses’.
It is also useful to have regard to what was said by Heerey J in Re Ruddock; ex parte LX [2003] FCA 561 at [42]:
As a matter of law there was no reason why that should have held up the filing of an application in the High Court. The terms of s 417 itself, including the provision that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such application where other avenues of possible relief are available as of right.
24 In Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 Goldberg J said at [14] that the applicant's course of conduct in making a s 417 application was indicative of a decision to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law. At [15] his Honour said that the s 417 application in that case was not a sufficient special circumstance to warrant excusing the delay and allowing the extension of time, particularly because the applicant's conduct implicitly accepted that the Tribunal's decision was not to be the subject of challenge.
M211 of 2003 at [22]-[24] per Black CJ, Sackville and Sundberg JJ.
The law as set out at M211 of 2003, and the cases there cited in the above extract, has been applied by this Court. For example:
a)in Gill v Minister for Immigration & Border Protection & Anor [2014] FCCA 1929 at [8] per Judge Emmett it was observed that:
… it is well established that an applicant’s conduct in seeking Ministerial intervention, under s.417 of the Act, is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the … [Tribunal] on grounds that may have otherwise been available to him …
b)in Wei v Minister for Immigration & Anor [2013] FCCA 262 at [22] per Judge Nicholls it was said that:
On its own this [seeking ministerial intervention] is not a satisfactory explanation for the delay. On his own submission, the applicant had the benefit of legal advice and chose to pursue Ministerial intervention with respect to a protection visa instead of coming to the Court …
c)in Borra v Minister for Immigration & Anor [2013] FCCA 1216 at [38] per Judge Burchardt it was said that:
… even if I accept the applicant's version of the events following the decision entirely (and of course it has not been tested by cross-examination), the fact is, there appears to be binding authority to the effect that the submission of s.351 application is effectively an acceptance of the Tribunal's decision …
It is plain from the above authorities that a request for Ministerial intervention is not merely an alternative course, but an inconsistent course which accepts the decision of the Tribunal as correct, or an inconsistent course which abandons any challenge to a decision of the Tribunal, or, at the very least, not a course which prevents the filing of a protection visa application. On the basis of that rationale, SZOLM is wrongly decided, and ought not be followed by the Court.
For the above reasons, the Court will not follow what was decided in DZAFG, SZTDM or SZOLM. The Court is indeed bound: see SZANS; Suh, to follow otherwise binding High Court and Federal Court authority which is also set out above: see Marks; Brisbane South Regional Health Authority, Tran and SZOBL.
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 relation to this passage from Marks the Court notes that the applicant had obtained advice from Law Access that his claim had “insufficient prospects of a successful judicial review”: Law Access Refusal Email, and from that time – July 2013 – until February 2015 he took no positive steps to pursue a protection visa application.
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 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 a delay of the length of the delay in this case. In any event the applicant did receive legal advice from Law Access within five months of the Tribunal Decision being made to the effect that his claims had “insufficient prospects of success”.
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 no evidence that the applicant is 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.
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 at [34] per Judge Jones and MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 at [15] per Judge F Turner.
Albeit that it was not a protection visa case, there are some similarities between this case and Tran where the Federal Court found the explanation for the delay to be neither adequate nor satisfactory: 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.
In Tran the 18 month delay was held to be excessive. In this case the delay is approximately 22 and a half months. Having regard to the matters set out immediately above the Court considers that a lack of legal representation, a lack of access to legal advice, and being non-English speaking, together with an ignorance of time limits (if that be the case) does not constitute a proper explanation for delay, and certainly not a delay of the order of that in this case.
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.
In this case, the applicant knew that the Tribunal Decision was not to grant him the Protection Visa, even if he did not understand the reasons for the refusal to grant the Protection Visa. Following the advice from Ms Appadoo (even though not a legal practitioner) and the refusal of assistance from Law Access, the applicant knew that it was possible to apply for review of the Tribunal Decision. He was advised to that effect by Law Access when refusing his application for assistance, the Law Access Refusal Email making it plain that the applicant had the options of making his own application to this Court for review or of hiring a lawyer at his own expense to assist him: Hanson’s March 2015 Affidavit, Annexure DCH 4. On his own evidence officers of the Department advised him to much the same effect. The applicant, however, simply proceeded passively, and failed to further pursue the issue of an application for judicial review of the Tribunal Decision from July 2013 until February 2015, and then not until arrangements were being made to remove him from Australia.
It is also relevant to observe that the applicant was not in immigration detention between April 2013 and December 2014, and was thus free to make such enquiries as he saw fit with respect to the issue of his immigration status.
At hearing junior Counsel for the applicant sought to rely on part of Bowman’s First February 2015 Affidavit in which she says that in November 2014 the applicant said to a Departmental officer that he just lays on his bed all day watching television, and that he had not seen a doctor, and that if this went on much longer he would throw himself off the building or kill himself some other way: see Annexure JCB 13 at page 65 of Bowman’s First February 2015 Affidavit. This evidence of what was allegedly said by the applicant at a meeting with a Departmental officer was used as a foundation for reliance upon a submission that the circumstances in this case were like those in Plaintiff M13/2011 v Minister for Immigration & Citizenship [2011] HCA 23; (2011) 85 ALJR 740; (2011) 277 ALR 667; (2011) 121 ALD 466 (“Plaintiff M13/2011”). In that case, the delay for the purposes of a Migration Act application was approximately 16 months, and the delay for an application for certiorari under r.25.06.1 of the High Court Rules 2004 (Cth) was approximately 13 months. Moreover, in that case the applicant had been admitted as an inpatient to a psychiatric unit in a hospital, albeit for a short period, and had been diagnosed as suffering from a severe depressive illness and post-traumatic stress disorder: Plaintiff M13/2011 at [5] per Hayne J. In that case, by reason of diminished capacity, the High Court took the view that the delay was only in the order of 12 weeks when regard was had for the applicant’s psychiatric condition: Plaintiff M13/2011 at [9] per Hayne J. Furthermore, in that case the applicant established jurisdictional error in a decision, not of the Refugee Review Tribunal, but of a delegate of the Minister, and in those circumstances time was extended and a writ of certiorari issued: Plaintiff M13/2011 at [1] and [29]-[31] per Hayne J. In this case, apart from a comment made in the course of an interview with a Departmental officer by the applicant himself, there is no evidence of the applicant having any psychological or psychiatric condition resulting in a diminished capacity to make the application. There is no evidence of any medical or allied health professional treating the applicant, and no affidavit evidence from a medical practitioner or allied health professional in relation to any psychiatric or psychological condition affecting the applicant. The submission also runs into the difficulty that the comments were made in November 2014 by the applicant, by which time he was already more than 19 months out of time for filing of the application. A further difficulty is that the submission runs contrary to the applicant’s own evidence, and in particular that the applicant was able to make “many friends” whilst “living in the community”, and was a member of The Wrestling Club of Western Australia, in which capacity he went to Queensland to compete in a wrestling competition with the club in 2013: Applicant February 2015 Affidavit at [27]. In the Court’s view, the evidence does not sustain an allegation that the applicant was unable to make an application to extend time, or to take any steps to facilitate such an application being made, by reason of his mental health. Although the applicant was not cross-examined on his Affidavit, there is also something incongruous about his being able to make friends and travel to Queensland to wrestle, but not to be able to make an application for judicial review in an attempt to prevent his return to Afghanistan, in circumstances where he portrays a return to Afghanistan as a life and death matter.
It was also submitted that by reason of the applicant’s age, and in particular it being alleged that he was a minor, that that provided some explanation for the delay. The Court is in no position to determine the applicant’s age with precision, and it seems best to rely upon what the Tribunal was told by the applicant himself, that is that he was born in 1994, and was therefore 18 at the time of his appearance before the Tribunal. In any event, he was still a very young man, but it probably matters little, particularly as the applicant was able to travel and compete as a wrestler, and had made many friends whilst living in the community, which again seem incongruous when measured against his failure to do anything with respect to making an application for judicial review.
It is plain that the applicant knew from in or about mid-March 2013 that the Tribunal had not granted him a Protection Visa. It is also apparent from the April 2013 Law Access request that the applicant knew that he could seek judicial review of the Tribunal Decision, and it can be inferred from his attempts to contact Ms Schulman that this is what he was endeavouring to do, after he had been advised to that effect. It is evident from the Law Access application signed by the applicant on 11 April 2013: see Hansen’s March 2015 Affidavit, annexure DCH 1, that the applicant:
a)indicated that there were not any current court proceedings in relation to his matter;
b)had previously contacted for assistance both Legal Aid and the then CASE For Refugees (an organisation which provided legal advice and representation to refugees), and that he had also been referred by Legal Aid to the Law Society; and
c)acknowledged previously having been assisted with the matter by “Andronicos Law Pty Ltd” and that they were no longer assisting because the applicant had received “a negative decision by the RRT”.
It is evident that the applicant had, by mid-March 2013, received a copy of the Tribunal Decision, which was annexed to the Law Access application, as was the letter from Andronicos Law Pty Ltd dated 14 March 2013 advising the applicant of the option of judicial review of the Tribunal Decision, and the copy of the Tribunal’s letter to the applicant himself, dated 28 February 2013 advising that the Tribunal had decided to affirm the Delegate’s Decision. Attached to that letter was an information sheet concerning Tribunal Decisions which indicated that if the applicant thought the decision of the Tribunal was wrong in law that he may consider seeking judicial review in the then Federal Magistrates Court of Australia.
It is apparent that as at the time of making the Law Access application the applicant knew that the Tribunal Decision had not gone in his favour, and also knew that he could do something about it, even if he did not understand the specific mechanics of an application for judicial review to his Court. The applicant, however, did nothing after making the application to Law Access, or more particularly after the refusal of that application in July 2013, to advance any steps to apply for judicial review of the Tribunal Decision, notwithstanding that the Law Access Refusal Email made it plain that the applicant could either make his own application to this Court for judicial review or hire a lawyer at his own expense to assist him: Hansen’s March 2015 Affidavit, Annexure DCH 4. On the applicant’s own evidence he was advised at several meetings throughout 2014 with the Department that he needed to obtain his own legal representation, but there is no indication of his endeavouring to do so. Further, there is no indication that he made any enquiries concerning the actual form of the judicial review, and there is no evidence that he made any approach to the Court to enquire about how he might apply for judicial review. On the evidence, the submissions made that the applicant had a “lack of knowledge” of a right of judicial review simply cannot be sustained.
Minister’s submissions
The Minister submitted that:
a)the applicant seeks review of the PRC Decision on the grounds that the Department made a jurisdictional error:
i)by denying the applicant procedural fairness; and
ii)by failing to have regard to a relevant consideration;
b)this Court has no jurisdiction to review the PRC Decision, with the result that the application to review the PRC Decision should be dismissed as incompetent;
c)pursuant to s.476(1) of the Migration Act, this Court has jurisdiction in relation to “migration decisions”, a term defined in s.5 of the Migration Act as meaning a “privative clause decision”, a “purported privative clause decision” or a “non-privative clause decision”. Those terms are respectively defined in ss.474(2), 5E and 474(6) respectively of the Migration Act;
d)the PRC Decision was not a decision made, or proposed to be made, or required to be made, under the Migration Act or any regulation or other instrument made under the Migration Act or one which conferred, altered or otherwise affected legal rights or obligations: Griffıth University v Tang [2005] HCA 7; (2005) 221 CLR 99; (2005) 79 ALJR 627; (2005) 213 ALR 724; (2005) 82 ALD 289 (“Tang”) at [89] per Gummow, Callinan and Heydon JJ.
e)there is nothing anywhere in the Migration Act that expressly or impliedly requires any such assessment to be undertaken, and the assessment is entirely without legal effect;
f)the position is analogous to that examined by the Full Court of the Federal Court in SZQDZ. In that case, it was held that recommendations by an IMR were not “migration decisions”: at [31], [40]-[41] and [49] per Keane CJ, Rares and Perram JJ;
g)the same is clearly true with respect to a pre-removal clearance, as there is nothing in the Migration Act that attaches any legal consequence to a pre-removal clearance decision;
h)it follows that the Court should hold that the challenge to the PRC Decision is incompetent, because that assessment is not a “migration decision” within the meaning of s.476(1) of the Migration Act;
i)in SZJSS at [38] per Perram, Jagot and Griffiths JJ (“SZJSS”) the Full Court of the Federal Court found that the primary judge erred in finding that he did not have jurisdiction as there was no ‘migration decision’: see SZJSS at [25]-[26] per Perram, Jagot and Griffiths JJ. The Full Court of the Federal Court concluded in SZJSS at [40] per Perram, Jagot and Griffiths JJ, that having regard to the extended definition of ‘decision’ in s.474(3)(h) of the Migration Act and the definition in s.474(2) of the Migration Act of a ‘privative clause decision’, the Federal Circuit Court of Australia had jurisdiction in respect of the applicant’s proceedings, as the Department’s current conduct in respect of the ITOA process and its earlier conduct from at least 12 March 2014 were properly to be viewed as conduct which was preparatory to the making of the decision which was required under s.198(6) of the Migration Act; and
j)by contrast here, the PRC Decision was not like the ITOA process under consideration in SZJSS which was to determine if a person was owed protection obligations, in which case his case would be referred to the Minister for consideration under the Minister’s intervention powers under the Migration Act, but if found not to be such a person, subject to any other proceeding challenging that assessment or any other impediment to his removal, planning would commence in relation to the applicant: SZJSS at [35] per Perram, Jagot and Griffiths. Further, it is to be noted that in SZJSS the Full Court of the Federal Court made no reference to the Full Court’s decision of SZQDZ relied upon by the Minister.
Alternatively if, contrary to the above, the Court concludes that it does have jurisdiction to determine the challenge to the PRC Decision, for the reasons that follow the two grounds on which that “decision” is challenged must fail.
The Minister further submitted that in relation to the alleged denial of procedural fairness in the PRC Decision that:
a)the first ground of review concerning the PRC Decision contends that the Department “made a jurisdictional error … by denying the applicant procedural fairness”. The particulars to that ground refer to the fact that the PRC Decision noted that the applicant had not provided any new information as to risks he would be at consequent upon his removal from Australia to Afghanistan, that the applicant was never asked to provide any new information, and that he has new information (although that “new information” is not identified). This ground of review should be rejected for two reasons;
b)first:
i)the PRC Decision is expressly directed to whether the removal of the applicant to Afghanistan would “raise concerns relating to Australia’s non-refoulement obligations”: Corbould Affidavit, Annexure PJC 3 at page 22. It is not concerned with any other possible impediment to removing the applicant from Australia;
ii)section 197C of the Migration Act, which was inserted by item 2 in Schedule 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (“Migration Legacy Caseload Act”), commenced on 16 December 2014;
iii)section 197C of the Migration Act was enacted for the express purpose of reversing the implied limitation on s.198 of the Migration Act that had been identified in Plaintiff M70/2011 v Minister for Immigration & Citizenship [2011] HCA 32; (2011) 244 CLR 144; (2011) 85 ALJR 891; (2011) 280 ALR 18; (2011) 122 ALD 237] at [54] per French CJ, [94]-[98] per Gummow, Hayne, Crennan and Bell JJ and [239] per Kiefel J] (“Plaintiff M70/2011”), and in Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269 at [229]-[231] per Lander and Gordon JJ and [313] per Besanko and Jagot JJ (“SZQRB”); see Explanatory Memorandum at [1135] and [1139];
iv)in light of s.197C(2) of the Migration Act, it is clear that, even if the applicant could demonstrate that the PRC Decision was not undertaken according to law, that would have no effect on the duty to remove the applicant from Australia pursuant to s.198 of the Migration Act. The PRC Decision is nothing more than an administrative arrangement pursuant to which officers of the Department consider whether there is anything that they think should be drawn to the Minister’s attention that the Minister might then chose to take into account in the exercise of personal non-compellable powers that the Minister could exercise to grant a visa (and thus prevent removal) if the Minister thinks that appropriate; and
v)procedural fairness is required only where an administrative decision affects rights or interests: Saeed v Minister for Immigration & Citizenship [2010] HCA 23, (2010) 241 CLR 252; (2010) 84 ALJR 507; (2010) 267 ALR 204; (2010) 115 ALD 493 at [11]-[15] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Kioa v West (1985) 159 CLR 550; (1985) 60 ALJR 113; (1985) 62 ALR 321; CLR at 609 per Brennan J. Here, s.197C(2) of the Migration Act expressly provides that the rights and interests of the applicant are not affected by “whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen”. Section 198 of the Migration Act mandates removal whether or not there has been such an assessment. In those circumstances, the pre-removal clearance does not affect the rights or interests of the applicant in a way that attracts the requirements of procedural fairness. The ground asserting that the PRC Decision was undertaken in breach of the rules of procedural fairness must fail for that reason alone; and
c)second, the applicant has already had his claims that he is owed protection obligations by Australia assessed by both a delegate, and the Tribunal, in the context of the Protection Visa application. Those decisions having been made, the statutory framework does not permit an applicant to advance new claims, or new material relating to old claims, in resisting removal from Australia pursuant to s.198 of the Migration Act. While any new material provided by the applicant could have been considered as part of the administrative arrangements referred to above, procedural fairness cannot have required an officer to invite the applicant to provide “new information” as to risks he may face if removed to Afghanistan, because as a matter of law any such risk is irrelevant to the performance of the duty to remove under s.198 of the Migration Act: see M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131; (2003) 131 FCR 146; (2003) 199 ALR 290; (2003) 75 ALD 360 at [65] and [67] per Goldberg, Weinberg and Kenny JJ; NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292; (2003) 133 FCR 506; (2003) 80 ALD 799.
The Minister further submitted that in relation to the alleged failure to take account of relevant considerations that it must also fail for the following reasons:
a)first, that ground of review is only available where a decision-maker fails to take account of a matter that the decision-maker is required to take into account by the Migration Act, either expressly or by necessary implication: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299; CLR at 30-40 per Mason J; Moana v Minister for Immigration & Border Protection [2015] FCAFC 54 at [4]-[5] per Jessup J and at [41] per Rangiah J. As the pre-removal assessment has no foundation in the Migration Act at all, it necessarily follows that the Migration Act does not require anything to be taken into account in making that assessment;
b)second, it is well established that at the point of removal an officer is not required to consider what will happen to a person following their removal pursuant to s.198 of the Migration Act (that issue having been addressed in the course of consideration of any protection visa application). Accordingly, there is no legal foundation for the proposition that the PRC Decision was required to consider any risk of harm to the applicant as a result of him being a person who had spent time in Australia, and been issued with an Identity Certificate by the Australian government; and
c)thirdly, even if the Court considered that there was some flaw in the PRC Decision (which is denied), such an assessment cannot be “quashed” (as is sought by the applicant), because certiorari can issue only to quash a decision that has legal effect: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; (1992) 66 ALJR 271; (1992) 106 ALR 11; CLR at 580-581 per Mason CJ, Dawson, Toohey and Gaudron JJ; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; (1996) 70 ALJR 286; (1996) 134 ALR 469; CLR at 159-165 per Brennan CJ, Gaudron and Gummow J and 178-180 per Dawson and Toohey J.
Consideration – further ground
Legislation
The jurisdiction of the Court in respect of matters related to the Migration Act is provided for in s.476 of the Migration Act. That section relevantly provides:
(1)Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. …
By reason of s.476(1) of the Migration Act if there is no relevant migration decision the Court has no jurisdiction.
The term “migration decision” is defined in s.5 of the Migration Act as follows:
migration decision means:
(a)a privative clause decision; or
(b)a purported privative clause decision; or
(c)a non‑privative clause decision.
…
non‑privative clause decision has the meaning given by subsection 474(6).
…
privative clause decision has the meaning given by subsection 474(2).
…
purported privative clause decision has the meaning given by section 5E.
Section 474 of the Migration Act relevantly provides:
(1) A privative clause decision:
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
“privative clause decision” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3)A reference in this section to a decision includes a reference to the following:
(a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d)imposing, or refusing to remove, a condition or restriction;
(e)making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i)a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
(4)For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:
Decisions that are not privative clause decisions Item Provision Subject matter of provision 1 section 213 Liability for the costs of removal or deportation 2 section 217 Conveyance of removees 3 section 218 Conveyance of deportees etc. 4 section 222 Orders restraining non‑citizens from disposing of property 5 section 223 Valuables of detained non‑citizens 6 section 224 Dealing with seized valuables 7 section 252 Searches of persons 8 section 259 Detention of vessels for search 9 section 260 Detention of vessels/dealing with detained vessels 10 section 261 Disposal of certain vessels 11 Division 14 of Part 2 Recovery of costs 12 section 269 Taking of securities 13 section 272 Migrant centres 14 section 273 Detention centres 15 Part 3 Migration agents registration scheme 16 Part 4 Court orders about reparation 17 section 353A Directions by Principal Member 18 section 354 Constitution of Migration Review Tribunal 19 section 355 Reconstitution of Migration Review Tribunal 20 section 355A Reconstitution of Migration Review Tribunal for efficient conduct of review 21 section 356 Exercise of powers of Migration Review Tribunal 22 section 357 Presiding member 23 Division 7 of Part 5 Offences 24 Part 6 Establishment and membership of Migration Review Tribunal 25 section 421 Constitution of Refugee Review Tribunal 26 section 422 Reconstitution of Refugee Review Tribunal 27 section 422A Reconstitution of Refugee Review Tribunal for efficient conduct of review 28 Division 6 of Part 7 Offences 29 Division 9 of Part 7 Establishment and membership of Refugee Review Tribunal 30 Division 10 of Part 7 Registry and officers 31 regulation 5.35 Medical treatment of persons in detention (5)The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.
(6)A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non‑privative clause decision.
…
(Emphasis added)
Regulation 5.35AA of the Migration Regulations 1994 (Cth) provides:
For subsection 474(5) of the Act, a decision, or a decision included in a class of decisions, made under a provision of the Act set out in the following table is not a privative clause decision.
Item Provision Subject matter of provision 1 section 252AA Power to conduct a screening procedure 2 section 252A Power to conduct a strip search 3 section 252B Rules for conducting a strip search 4 section 252C Possession and retention of certain things obtained during a screening procedure or strip search 5 section 252D Authorised officer may apply for a thing to be retained for a further period 6 section 252E Magistrate may order that thing be retained 7 section 252G Powers concerning entry to a detention centre 8 Division 13A of Part 2 Automatic forfeiture of things used in certain offences
Section 5E of the Migration Act provides:
5E Meaning of purported privative clause decision
(1)In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
(2)In this section, decision includes anything listed in subsection 474(3).
Section 197C of the Migration Act provides as follows:
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
Section 197C of the Migration Act was inserted by the Migration Legacy Caseload Act, and applies in relation to the removal of an unlawful non-citizen on or after 16 December 2014. The applicant was detained in immigration detention on 18 December 2014 and the PRC Decision was made on 9 February 2015, with the applicant issued with the “Notice of Intention to Remove from Australia” on 13 February 2015.
Parts of the Explanatory Memorandum to the Migration Legacy Caseload Bill that became the Migration Legacy Caseload Act expanded on this in some detail: see [1128]–[1146]. Particularly noteworthy are the following paragraphs:
1133.In recent years judicial review of protection visa refusal decisions has led to a number of broad and unintended interpretations of Australia’s protection obligations under the Refugees Convention and other international treaties. There has been a trend of jurisprudence favouring an approach whereby the provisions of the Migration Act are construed in light of a presumed legislative intention for the Migration Act as a whole to facilitate Australia’s compliance with its obligations under the Refugees Convention.
1135.In Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32, the majority of the High Court further found that the removal power under section 198 of the Migration Act was to be read in light of, and subject to, the obligations in the Refugees Convention. In the recent decision of Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 the Full Court of the Federal Court found this principle was extended to the non-refoulement obligations under the Covenant and the Convention Against Torture. These decisions have had a significant impact on the Government’s ability to remove unlawful non-citizens from Australia under section 198 of the Migration Act.
1136.Prior to this recent jurisprudence, section 198 of the Migration Act created an obligation to remove unlawful non-citizens in the circumstances prescribed in section 198 and this duty was not constrained by reference to Australia’s international obligations (for example, the Full Court of the Federal Court decision in M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131). This was because it was understood that Australia’s international obligations had already been considered during separate processes prior to removal, for example when considering the persons application for a protection visa or when the Minister was considering the use of his or her personal powers.
1137.In general terms, the amendments in this item are intended to restore the situation to that arising prior to the jurisprudence noted above by making it clear that the removal powers are separate from, unrelated and completely independent of, any provisions in the Migration Act which might be interpreted as implementing Australia’s non-refoulement obligations.
1139.The amendments in this item are therefore intended to provide that decisions such as Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 are no longer ‘good law’ for the purposes of removal from Australia of unlawful non-citizens under section 198 of the Migration Act.
1140.The amendments are intended to put it beyond doubt that the purpose of section 198 is not to respond to international protection obligations, but to provide officers with the duty to remove unlawful non-citizens from Australia in the circumstances as set out in section 198 of the Migration Act.
1141.This means that the duty to remove in section 198 of the Migration Act arises irrespective of whether or not there has been an assessment, according to law or procedural fairness, of Australia’s non-refoulement obligations in respect of the non-citizen.
The use of the Ministers personal powers is highlighted at [1142]-[1146] which say as follows:
1142.Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.
1143.The Minister’s personal power under subsection 46A(2) provides that the Minister may determine that an unauthorised maritime arrival may make a valid visa application if the Minister thinks that it is in the public interest to do so. The Minister’s lifting of the visa application bar may enable non-refoulement obligations to be considered in an appropriate visa application process.
1144.The Minister’s personal power under section 195A provides that the Minister has a non-compellable power to grant a visa to a person who is in immigration detention where the Minister thinks that it is in the public interest to do so. In the exercise of this power the Minister is not bound by the provisions of the Migration Act or Migration Regulations governing application and grant requirements. The Minister has the flexibility to grant any visa that is appropriate to that individual’s circumstances. In these circumstances, if the Minister thinks that it is in the public interest to do so, the Minister may grant a visa to a person to ensure that the person is not removed in breach of Australia’s non-refoulement obligations.
1145.The Minister’s personal power under section 417 provides that the Minister has power to substitute a decision more favourable to the applicant than the decision of the Refugee Review Tribunal in relation to a reviewable decision. In these circumstances, the Minister may, if the Minister thinks that it is in the public interest to do so, grant a visa to a person who has had a visa decision affirmed by the Tribunal to ensure the person is not removed in breach of Australia’s non-refoulement obligations.
1146The above mechanisms enable non-refoulement obligations to be addressed before a person becomes ready for removal. At the removal stage, an officer will not be bound to check whether or not the Minister has considered exercising his or her personal powers when assessing if a person is subject to removal under section 198 of the Migration Act. If an unlawful non-citizen satisfies one of the conditions specified in section 198, the officer must remove the unlawful non-citizen as soon as reasonably practicable and it is not open to the non-citizen to challenge their removal on the basis that there has been no assessment of protection obligations according to law or procedural fairness.
Section 198(6) of the Migration Act provides that:
(6)An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a)the non-citizen is a detainee; and
(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c)one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(iii) the visa cannot be granted; and
(d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
Jurisdiction
The first question is whether the Court has jurisdiction to determine the matter. The issues which arise are whether the PRC Decision was:
a)conduct preparatory to the making of a decision under the Migration Act; or
b)a decision made under the Migration Act.
That decision need not already have been made and can be conduct preparatory to a decision: Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244; SZQDZ. In short, a migration decision is, for present purposes a decision, including conduct preparatory to the making of a decision, that is, or purports to be made under the Migration Act. Whether there is a decision under the Migration Act requires consideration of any decision, or possible future decision, and the connection, if any, between it and the PRC Decision. That question requires a consideration of the provisions which might provide the necessary connection between the PRC Decision and the Migration Act.
Under s.476(1) of the Migration Act, this Court has jurisdiction in relation to “migration decisions”, as defined in s.5 of the Migration Act to mean a “privative clause decision”, a “purported privative clause decision” or a “non-privative clause decision”.
Section 474(2) of the Migration Act defines “privative clause decision” as “a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under the Migration Act or under a regulation or other instrument made under the Migration Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)”. Section 474(3) of the Migration Act then specifies that the reference in this section to a decision includes a reference to the various matters set out at s.474(3)(a) to (g) of the Migration Act.
A “purported privative clause decision” is defined in s.5E of the Migration Act as a decision that would be a privative clause decision if there were not a failure to exercise jurisdiction or an excess of jurisdiction in the making of the decision.
A “non-privative clause decision” is defined in s.474(6) of the Migration Act in terms that are not presently relevant.
In Tang at [89] per Gummow, Callinan and Heydon JJ the High Court explained that:
The determination of whether a decision is “made … under an enactment” involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be “made … under an enactment” if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require that the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.
The two Tang criteria to be satisfied are not satisfied by the PRC Decision because:
a)the Migration Act does not expressly or impliedly require the PRC Decision to be undertaken; and
b)the PRC Decision is without relevant legal effect, for reasons explained further below.
In SZQDZ the Full Court of the Federal Court held that recommendations by an independent merits reviewer were not “migration decisions”: SZQDZ at [31] per Keane CJ, Rares and Perram JJ. The Full Court of the Federal Court observed as follows:
40. … Ordinarily, merely procedural steps in the course of arriving at a substantive determination lack the quality of a decision. As Mason CJ said in his celebrated judgment in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 342:
[T]here is a clear distinction between a “decision” and “conduct” engaged in for the purpose of making a decision. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision.
41. And in Tang at [79]-[80], Gummow, Callinan and Heydon JJ said:
79. The decision so required or authorised must be “of an administrative character”. This element of the definition casts some light on the force to be given by the phrase “under an enactment”. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?
80. The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement …?
SZQDZ at [40]-[41] per Keane CJ, Rares and Perram JJ.
In SZQDZ the Full Court of the Federal Court concluded that assessments by an independent merits reviewer did not have an effect of the kind required to meet the above criteria. So too with the PRC Decision. There is nothing in the Migration Act that attaches any legal consequence to the PRC Decision.
In SZSSJ the Full Court of the Federal Court allowed an appeal from a decision of this Court dismissing an application for want of jurisdiction. The critical passage in SZSSJ is:
[40]In our view, the Department has, since at least 12 March 2014, been engaged in conduct that is preparatory to a decision which is required to be made under the Act, namely whether or not the applicant is to be removed from Australia under s 198(6) of the Act. Having regard to the extended definition of “decision” in s 474(3)(h) (which defines a decision as including a reference to “conduct preparatory to the making of a decision”), and the definition in s 474(2) of a “privative clause decision”, the FCCA had jurisdiction in respect of the applicant’s proceedings. The Department’s current conduct in respect of the ITOA process and its earlier conduct since at least 12 March 2014 (if not earlier from the time the applicant was taken into detention) are properly to be viewed as conduct which is preparatory to the making of the decision which is required under s 198(6). That is evident from the Department’s correspondence with the applicant and from the applicant’s evidence of what he was told by his new Case Manager in late September 2014. Even though the Minister’s statutory powers of intervention are not expressed in a way which requires him to make a decision under those provisions, any decision which is made under those provisions must necessarily be relevant to the decision which ultimately has to be made under s 198(6).
In SZSSJ at [38] per Perram, Jagot and Griffiths JJ the Full Court of the Federal Court:
a)found that the primary judge erred in finding that he did not have jurisdiction; and
b)concluded that having regard to the extended definition of “decision” in s.474(3)(h) of the Migration Act and the definition of a “privative clause decision” in s.474(2) of the Migration Act, this Court had jurisdiction in respect of the proceedings, because the Department’s conduct in respect of the International Treaties Obligations Assessment (“ITOA”) process, and its earlier conduct from at least 12 March 2014, were properly to be viewed as conduct preparatory to the making of the decision which was required under s.198(6) of the Migration Act.
The Court notes that:
a)in SZSSJ the Full Court of the Federal Court made no reference to SZQDZ; and
b)as s.197C of the Migration Act only came into operation on 16 December 2014: see SZSSJ & Ors v Minister for Immigration & Border Protection & Ors (No. 2) [2015] FCAFC 125; (2015) 234 FCR 1 at [54] per Rares, Perram and Griffiths JJ, SZSSJ is distinguishable in the circumstances of this case, where the PRC Decision was made after s.197C of the Migration Act came into effect.
The PRC Decision is not like the ITOA process which was under consideration in SZSSJ. The ITOA process was to determine if a person was owed protection obligations, and if so the case would be referred to the Minister for consideration under the Minister’s intervention powers under the Migration Act, but if found not to be such a person, subject to any other proceeding challenging that assessment or any other impediment to his removal, planning would commence in relation to the applicant: SZSSJ at [35] per Perram, Jagot and Griffiths JJ. The PRC Decision is nothing more than an administrative arrangement pursuant to which officers of the Department consider whether there is anything that they think should be drawn to the Minister’s attention that the Minister might then choose to take into account in the exercise of personal non-compellable powers that the Minister could exercise to grant a visa (and thus prevent removal) if the Minister thinks that appropriate. The PRC Decision was not a decision made, or proposed to be made, or required to be made, under the Migration Act or any regulation or other instrument made under the Migration Act.
Section 197C of the Migration Act was enacted for the express purpose of reversing the implied limitation on s.198 of the Migration Act that had been identified in Plaintiff M70/2011 at [54] and [94]-[98] per French CJ, and [239] per Kiefel J and in SZQRB at [229]-[231] per Lander and Gordon JJ and [313] per Besanko and Jagot JJ: Explanatory Memorandum at [1135] and [1139].
Section 197C(2) of the Migration Act makes it clear that even if the applicant could demonstrate that the PRC Decision was not undertaken according to law, that would have no effect on the duty to remove the applicant from Australia under s.198 of the Migration Act.
In the Court’s view:
a)s.197C of the Migration Act plainly prohibits the Court from granting any form of relief which would have the effect of preventing the applicant’s removal from Australia; and
b)the challenge to the PRC Decision is incompetent, because the PRC Decision is not a “migration decision” within the meaning of s.476(1) of the Migration Act for the reasons set out above.
Conclusion and orders
The length of the 687 day delay in making the application, and the failure to satisfactorily explain that delay, is such that the delay alone in this case is a sufficient basis for dismissal of the extension of time application. It follows that there should be an order that the applicant’s application under s.477(2) of the Migration Act for an extension of time in which to lodge an application under s.476 of the Migration Act be dismissed. It further follows that the injunction issued on 23 February 2015 should be discharged.
Even if the length of, and failure to explain, the delay were alone not enough to warrant dismissal of the extension of time application, the effect of a consideration of the other factors leads to the same result, because:
a)there is prejudice to the Minister;
b)there is no public interest in the matter;
c)the failure of the applicant to make out any of the grounds of the application means that the application lacks merit in any event and has no prospects of success, and the Court should not therefore extend time: SZSDA at [39] per Foster J; and
d)the PRC Decision is incompetent.
It suffices to observe that the lack of merit in the grounds of the application is such that it would have been dismissed in any event. Thus, even if time had been extended, the Court would not have been persuaded that the application had merit, or that there was jurisdictional error in the Tribunal Decision, and the application would not have succeeded.
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 [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; WZASQ at [34] per Judge Lucev.
Finally, the Court will 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 one hundred and ninety-eight (198) are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 20 June 2016
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