Recent migration law case where Federal Circuit Court refuses an application filed some 3 months out of time seeking review of a protection visa refusal by Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”)

BCF15 v Minister for Immigration & Anor [2016] FCCA 2340 (8 September 2016)

In this case, court considered number of important issues such as review of authorities in regard to extension of time, what is “claim”, nature of tribunal proceedings.

The applicant contended in this proceeding that the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), fell into jurisdictional error when it found that the applicant did not meet the criteria for a Protection (Class XA) visa set out in s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”). In this proceeding the applicant advanced four arguments by which he asserted the existence of jurisdictional error. The applicant applied to this Court out of time so he needed an order granting him an extension of time within which to bring this application for review.The Tribunal’s decision was made on 12 February 2015. The applicant had 35 days within which to apply to this Court under s.477(1) of the Act, that is to say by mid-March 2015. Instead, the applicant applied to this Court on 19 June 2015, several months out of time. None of the four grounds of review amount to jurisdictional error. It follows that none of the grounds of review are “arguable”, “reasonably arguable”, “sufficiently arguable” nor have any of the four grounds of review “reasonable prospects of success”.[96] In my view no point is served in granting an extension of time for the bringing of this application for the review of the Tribunal’s findings. I refuse the application to extend time.In this case I have decided to refuse to grant an extension of time as the legal criteria for the grant of such an extension were not met.

Issue of delay was dealt at paragraphs 10-19 –

Extension of time

10. The Tribunal’s decision was made on 12 February 2015. The applicant had 35 days within which to apply to this Court under 477(1)of the Act, that is to say by mid-March 2015. Instead, the applicant applied to this Court on 19 June 2015, several months out of time.
11. In this case I have decided to refuse to grant an extension of time as the legal criteria for the grant of such an extension were not met.
12. As long ago as 1984, in the context of the review of administrative decisions generally (not specifically those under the Act) Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[8](“Hunter Valley Developments”) put forward a six-point list of issues to be considered in an application to extend time. Relevantly paraphrased, they amount to the following –
13. it is the prima facie rule that a proceeding commenced outside of the period prescribed by legislation will not be entertained[9]and that it is a precondition to the exercise of the discretion in favour of the grant of an extension of time that the applicant for the extension must show an “acceptable explanation”for the delay and that it is “fair and equitable in the circumstances” to extend time;[10]
14. action taken by the applicant is relevant to the question of whether an acceptable explanation for the delay has been furnished including whether the applicant has continued to make the decision-maker aware that he (the applicant) contests the decision and has not rested on his rights;[11]
15. prejudice to the respondent in defending the proceeding is a material factor militating against the grant of leave;[12]
16. conversely, the absence of prejudice is not sufficient to justify the grant of an extension of time;[13]
17. the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted;[14]and
18. considerations of fairness as between the applicant and other persons are also relevant.[15]
19. In the specific context of the Act, the decision in Minister for Immigration andMulticultural and Indigenous Affairs v Sun[16]is relevant but it turned on a different issue than did the facts of this case.
20. The need for the applicant to show “something very persuasive indeed”to justify the grant of leave after a year was considered in
    Jess v Scott.[17]In that case the Federal Court said “something much less significant”might be justified where the party was a few days late in meeting the prescribed time.[18]
21. In Howard v Australian Electoral Commission[19](“Howard”),
    Branson J referred to the three factors relevant to the exercise of the discretion to grant or refuse an extension of time, namely –
22. the importance of the question sought to be raised;
23. the bona fides of the proposed appeal; and
24. the prima facie strength of the proposed ground of appeal.
25. An illustration of the Federal Court of Australia refusing leave was given in WAJU v Minister for Immigration and Multicultural and Indigenous Affairs[20]especially whether the substantial application was without merit. In SZMNO v Minister for Immigration and Citizenship,[21]Barker J catalogued some of the situations where an acceptable explanation for the delay was not offered.
26. In SZTES v Minister for Immigration and Border Protection[22](“SZTES”), the Full Court of the Federal Court of Australia held that the test applied by a judge of this Court, namely, whether the substantive proceeding had no reasonable prospects of success, was not incorrect.
27. InMZABP v Minister for Immigration and Border Protection,[23]
    Justice Mortimer of the Federal Court of Australia expressly countenanced language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable”or whether it has “reasonable prospects of success”citing SZRIQ v Federal Magistrates Court of Australia & Ors.[24]Mortimer J cautioned against transforming the extension of time application into a de facto full hearing.
28. In SZTES,Wigney J held that a judge hearing an extension of time application must carefully distinguish between grounds of review that are hopeless and destined to fail as opposed to grounds that are weak. Where grounds are weak, as opposed to those being hopeless, it will rarely be appropriate to refuse to extend time. That said, as French J held in Seiler v Minister for Immigration, Local Government and Ethnic Affairs,[25]an applicant on the hearing of an extension of time application need not establish that his or her grounds of review will succeed. In this case, the applicant’s written submissions[26]did not even address the applicant’s need to seek and obtain an order extending the time for the bringing of the application for review. However, a solicitor employed by Victorian Immigration Lawyers swore two affidavits in support of the extension of time application.[27]The applicant’s solicitor swore that the solicitor looking after the applicant’s case on
    14 April 2015 was no longer able to assist, that on 1 May 2015 a new solicitor had been located who could assist and that since 1 May 2015 no further communication had been supplied about the provision of legal assistance to represent the applicant. The solicitor swore that soon after the applicant was returned to immigration detention three weeks prior to 19 June 2015 (being the date on which the solicitor’s main affidavit was sworn) Victorian Immigration Lawyers consulted a barrister and a few days prior to 19 June 2015, the application for an extension of time was filed.

An “acceptable explanation”?

20. The first question is whether that explanation was “an acceptable explanation”for the purposes of the matters mentioned by Wilcox J in Hunter Valley Developments. On a careful examination of the affidavit material, it boiled down to the applicant contending, through his solicitor, that the applicant once had legal representation, then he lost that representation, then the services of a barrister were enlisted and then the extension of time application was made. In the context of a litigant who was not represented throughout, I am willing to proceed on the basis that the explanation offered was acceptable.”

The bona fides

21. Applying the second consideration of Howard, the bona fides of the proposed application for review is not in question. Unless the applicant succeeds in this application, he is at risk of being removed from the Commonwealth of Australia.

The prima facie strength of the application for review

22. The biggest issue for the applicant was the fact that his grounds of review were destined to fail.
23. In the passages below I have addressed each of the applicant’s grounds of review and concluded that the applicant’s grounds of review were destined to fail. Discussing the issue of “Claim” His Honour comments at paragraph 35 – Accordingly, it seems to me that the proper approach in any consideration of the applicant’s contentions in this case is to commence by ascertaining the metes and bounds of the matters the Tribunal was required by law to consider. Dissected, the Tribunal was required to deal with –
24. a substantial clearly articulated argument relying upon established facts;[50]
25. a claim or claims and its or their component integers;[51]
26. evidence and material that the Tribunal accepts to raise a case not articulated;[52]
27. an unarticulated claim that is raised squarely on the material available to the Tribunal;[53]and
28. not an application or claim never made.[54]

Conclusion

99. None of the four grounds of review amount to jurisdictional error.
100. It follows that none of the grounds of review are “arguable”, “reasonably arguable”, “sufficiently arguable”nor have any of the four grounds of review “reasonable prospects of success”.[96]
101. In my view no point is served in granting an extension of time for the bringing of this application for the review of the Tribunal’s findings.

I refuse the application to extend time.