Federal Court of Australia

ABE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1495

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time and leave to appeal filed on 12 August 2021 be refused.

2.    The applicant pay the first respondent’s costs, to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    By an application for extension of time and leave to appeal filed on 12 August 2021, the applicant seeks to appeal from the judgment of the primary judge in ABE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCCA 386, in which the judge ordered that the applicant’s reinstatement application filed on 19 June 2019 be dismissed.

2    For the reasons that follow, the application must be dismissed.

3    Before turning to the circumstances in which the need for this application arose, and dealing with the parties’ respective submissions, at the hearing on 24 November 2021, counsel for the applicant, Dr S Churches, sought leave to adduce fresh evidence pursuant to r 36.57 of the Federal Court Rules 2011 (Cth). That evidence was a psychological report by Mr Richard Balfour, Clinical Psychologist, dated 23 June 2021, which in substance said that the applicant has “developed a psychological condition called ‘learned helplessness’, which results in sufferers ‘losing the ability to assist themselves’”. The Minister accepted that the applicant should be able to rely on that evidence in support of his application for an extension of time, but not to support any proposition that the learned primary judge relevantly erred. Dr Churches accepted that the evidence was only being tendered for the first purpose, and the report of Mr Balfour was admitted into evidence accordingly.

4    I should also mention the proposed grounds of appeal. On 28 October 2021, the applicant filed (or attempted to file) an amended notice of appeal. The Minister’s written submissions were directed to that document. However, at the hearing, counsel for the applicant did not seek to rely on that document, but instead relied on grounds set out in Mr Cifuentes’ affidavit dated 9 August 2021 at [3] “for the purpose of an application for review of the decision of the IAA”. The grounds were as follows:

3.1    Ground 1

The IAA did not properly reach a state of satisfaction when exercising its powers under s473DD(a) and (b)(ii) of the Migration Act 1958, in that it did not properly consider, or failed to give proper, genuine and realistic consideration to whether there existed exceptional circumstances to justify considering new information provided by the Applicant’s representative, nor did it assess whether the new information was credible personal information not previously known to the Minister which, had it been know, may have affected the Applicant’s claim.

Particulars

(a)    The IAA has not assessed the new information pertaining to an uncle’s death notice (“the death notice”) for “exceptional circumstances” as required by law, involving s473DD(b) factors providing context for an assessment of s473DD(a) “exceptional circumstances.”

(b)    The IAA applied the incorrect test when considering whether the applicant met either of the criteria in s473DD(b)(i) or (ii) of the Migration Act 1958 (Cth), when it failed to consider the new information pertaining the death notice, for reasons not relevant to the assessing provision in the statute, namely because:

(i)    it found at [11]: ‘the applicant has provided no other evidence showing that the officer pictured is in fact related to him, or to his parents or any other relatives’;

(ii)    it applied pre-conditions to the exercise of the power in [s]473DD(a) when it said of the applicant’s failure to provide corroborative information of the death notice, that he had not ‘[…] given the IAA any explanation or indications as to how he came to be in possession of this notice nor why he had not provided it earlier, nor when he learned of its existence…’ …

3.2    Ground 2

The IAA failed to consider the real risk of significant harm on account of aspects of the applicant’s profile for the purposes of s36(2A), that it had accepted for the purpose of its assessment pursuant to s36(2).

Particulars

(a)    The IAA accepted (at [55]) that ‘as for social stigma and discrimination, I accept many Tamil returnees face difficulties re-integrating and finding suitable employment’, however the second Respondent ultimately reached the conclusion that ‘any discrimination he may face will be low-level and will not affect his ability to access basic necessities and services’.

(b)    For the purposes of its assessment of s36(2A) the IAA failed (at [61]) to consider the effect of the ‘social stigma’ in respect of the applicant’s ability to ‘reintegrat[e] and fin[d] suitable employment’, that it had earlier accepted for the purposes of s36(2) in its assessment of whether the effect of this ‘social stigma’ constituted significant harm.

Background

5    On 1 March 2019, a Registrar of the Federal Circuit Court dismissed an application by the applicant for judicial review of a decision of the Immigration Assessment Authority (IAA), which affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act), because he failed to appear on the first date appointed for the return of the application.

6    The applicant is a citizen of Sri Lanka, who arrived in Australia on 17 November 2012. Subsequently, on 9 August 2016 he applied for a visa on the basis that he was liable to persecution, if returned to Sri Lanka, because of his Tamil ethnicity; his real and imputed association with the Liberation Tigers of Tamil Eelam; the circumstances surrounding his illegal departure from Sri Lanka; and the fact that he had applied for asylum in this country.

7    Since his arrival in Australia, the applicant has formed a relationship with an Australian resident and they have a child together, who was born in 2016 and is an Australian citizen. In his oral submission to the primary judge, “the applicant … forcefully stated his wish to remain in Australia so that he [could] maintain a relationship with his partner and child”. See J at [5].

8    The IAA decision was made on 10 December 2018. The applicant commenced the judicial review proceeding in the Federal Circuit Court on 7 January 2019, within time. His application and supporting affidavit were hand written. The sole ground of the application was as follows: “That the IAA has made a jurisdictional error in my case”.

9    In support of his application below, as required by the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) (being the rules applicable at the time the application was filed), the applicant filed an affidavit in support. The substantive portions of it read: “I am the applicant in relation to [the] application lodged in the Federal Circuit Court filed herein this [sic] my affidavit in support of that application. I say that I meet the requirements for the grant of a protection visa and the decision should be set aside”.

10    The applicant below filed his application for a review of the Registrar’s decision to dismiss his application on 28 June 2019, which was approximately four months after the Registrar’s decision.

11    For reasons that are not relevant on the application before me, the primary judge held that the applicant did not provide an acceptable reason for his failure to appear before the Registrar.

12    The primary judge went on to consider whether he should exercise the discretion vested in him under the FCC Rules to set aside the Registrar’s order. The judge recognised that the exercise of that power, under r 16.05(2)(a) of the FCC Rules was to be exercised to avoid injustice. His Honour quoted the following passage from McHugh J in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 480 [2]:

This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, 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 of the grant or refusal of the application for extension of time …

13    His Honour said that the following considerations were relevant in the exercise of the relevant discretion (citing CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 at [4] (Mortimer J)):

(1)    whether the applicant has an adequate explanation for the non-appearance;

(2)    whether there is any prejudice to the Minister if the matter is reinstated; and

(3)    whether the applicant has an arguable case on judicial review.

14    As I said, the judge found that the applicant had not provided an adequate explanation for his non-attendance before the Registrar. He also found that it was unlikely that there would be any great prejudice to the Minister if the application were reinstated.

15    The primary judge then said (at [46]-[58]):

Accordingly the case turns on whether the applicant has demonstrated an arguable case for the intervention of the Court. In this context, I note that the applicant is a non-English speaker who necessarily must be at a significant level of disadvantage in presenting his case before the Court.

The applicant’s case for judicial review is inchoate and un-particularised. In his oral submission to the Court he raised matters of an idiosyncratic nature relating to his personal circumstances. As Reeves J observed in SZNXA v Minister for Immigration & Citizenship [11] formulaic or generic grounds of review do not allow a reviewing court to assess whether the errors generally asserted were actually committed by the primary decision maker and, as such, form a basis for the dismissal of the application concerned.

Nor is it for this Court to scrutinise the reasons for decision of the IAA for errors of reasoning or apparent unfairness, which the applicant himself has as yet not been able to delineate or discern other than through the expression of a general disagreement with the conclusion reached by the IAA that Australia does not owe him any duty of protection.

The IAA decision is some twenty pages in length. It recognises that the applicant provided information to the Authority that, although he remains married to a person in Sri Lanka, he has entered into a relationship with a person in Australia and has a child born in 2016, who is an Australian citizen.

It would be hard not to feel sympathy for the predicament in which he finds himself by reason of the obviously significant relationships which he has forged in this country. However, as previously indicated, these matters are not germane to whether Australia does or does not owe him a duty of protection under the Act.

The IAA did however consider whether this issue was new information for the purposes of the review provisions arising under Part 7AA of the Act, particularly in the context of the possible targeting of the applicant for being in breach of Sri Lanka’s marriage laws. It considered that it was not. The applicant has not raised any ground in respect of this issue.

In addition, he has not attempted to catalogue any error in respect of any other finding of the IAA in which it rejected other aspects of new information raised by the applicant in between the date of the ministerial delegate decision and the disposal of the review process before the IAA.

In its decision, the IAA has apparently detailed the various bases on which the applicant has sought refugee status. The IAA categorised much of the applicant’s evidence to be confused and contradictory and to be marked by embellishment.

In the absence of any ground articulated by the applicant, I am not in a position to ascertain whether any jurisdictional error attaches to these findings of the IAA, which on a prima facie assessment are considered and relate to the claim as articulated by the applicant. In particular, in his submission to the Court in his reinstatement application, the applicant does not contend that an aspect of his claim was overlooked or that he himself was subject to some degree of procedural unfairness.

Rather, as his application contends on its face, it is a submission that he is entitled to the grant of the visa in question. However, he is not able to indicate why this is so. In this context, I appreciate that the concept of jurisdictional error is a complex one to convey even to a person who is fluent in English and perhaps has a higher level of education than that which the applicant himself has received.

Be that as it may, it is not for this Court to attempt to make out some form of case for the applicant or to scrutinise the record available to it in an effort to identify some species of error, which may perhaps be capable of supporting argument at a later stage. The onus must be on the applicant to articulate, with some degree of clarity, what he asserts is the basis on which the IAA fell into jurisdictional error.

In my view, the applicant has not done so and has failed to articulate any arguable case for the intervention of this Court through a process of judicial review. For these reasons, the application for review of the Registrar’s decision and any related application for reinstatement of the dismissed application must fail and the relevant applications dismissed.

The first respondent seeks costs in an amount of $1,495.00. In all the circumstances, it is appropriate that the applicant pay costs fixed in this amount.

The application in this court

16    This application was filed 518 days out of time.

17    It is accordingly necessary for the applicant in this court to address the well-established principles on whether it is in the interests of the administration of justice for the applicant to be granted an extension of time, which involves a consideration of:

(1)    the extent of the delay;

(2)    the explanation for the delay;

(3)    any prejudice to a respondent because of the delay; and

(4)    the merits of the proposed appeal assessed at a reasonably impressionistic level.

18    Further, because the primary judge’s decision not to set aside the Registrar’s order was an interlocutory decision, under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicant requires leave to appeal. In determining whether to grant leave, the court will generally take into account:

(1)    whether there is sufficient doubt as to the correctness of the judgment subject to the proposed appeal to warrant review; and

(2)    whether substantial injustice would be suffered by the applicant if leave were refused.

19    In the applicant’s affidavit filed on 12 August 2021, at [25], he attributed the delay to his “poor mental health”. He annexed the report of Mr Balfour, Clinical Psychologist, to attest to his mental health issues. Mr Balfour opined that the applicant developed a condition called “learned helplessness” and other mental impairments such as PTSD, major depressive illness, chronic pain syndrome and pseudodementia. On those bases, he opined that the applicant was “incapable of planning, and organising himself to lodge an appeal application, within a timely manner”. However, that evidence does not adequately explain the delay.

20    Counsel for the Minister, Mr Chan, made some justifiable criticisms of the report. It was based on a single assessment on 5 May 2021, made many months after the primary judge delivered his judgment, and it does not say whether the applicant suffered from relevant mental health impairments when he appeared before the primary judge.

21    Nonetheless, Mr Chan, appropriately, accepted that the Minister would suffer no specific prejudice if an extension of time were granted, except for the public interest in the finality of administrative decision making.

22    I accept that in circumstances where an application for extension is made 518 days late, public interest is not insignificant. But, as in many of these cases, it is usually preferable to focus more particularly on the underlying merits of the case sought to be brought.

23    In the circumstances of this case, the applicant must demonstrate, at a reasonably impressionistic level, whether the grounds of appeal are sufficiently meritorious to warrant the extension of time.

24    Here it is necessary to address two questions.

25    The first question is whether the primary judge erred in the exercise of his discretion under the FCC Rules by refusing to set aside the Registrar’s decision to dismiss his application – that is, whether he acted upon a wrong principle; allowed extraneous or irrelevant matters to guide or affect the decision; mistook facts; or failed to take into account a material consideration.

26    The second question is, assuming that his Honour did so err, and that the matter should be remitted to him for determination according to law, whether there is any utility in doing so. That question in turn depends on an assessment of the grounds of appeal that the applicant says he will pursue if the Registrar’s order setting aside his application is set aside, and he is allowed to pursue it.

27    Taking each of those questions in turn.

28    The only ground upon which it was contended by counsel for the applicant that the primary judge erred in dismissing the application for review of the Registrar’s decision was that his Honour did not apply article 3(1) of the United Nations Convention on the Rights of the Child (Convention). The applicant contended, in effect, that because of Australia’s ratification of the Convention, applying the principles from Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 and the cases which followed (including DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184, and Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608), the primary judge was required to treat the best interests of the applicant’s child as a primary consideration, and if his Honour was proposing not to do so, then that should have been put to the applicant as a matter of procedural fairness.

29    I am unable to accept that submission. First, the line of cases relied on about the best interests of the child are applicable to discretionary executive or administrative decision making, not to the exercise of a (procedural) judicial discretion.

30    But in any event, as the Minister submitted, no argument was put to the primary judge that required him to consider the best interests of the applicant’s child, or to treat those interests as a primary consideration. The extent of the applicant’s submission below was that he wanted to remain in Australia to stay with his partner and child. And it is clear from the primary judge’s reasons, including at [38] and [50], that he took into account the applicant’s submission about his significant ties to Australia, and that he wished to remain here so that he could maintain a relationship with his partner and child. See J at [5]. And it is not for the court to form arguments for the parties, even if they are unrepresented. See Hamod v New South Wales [2011] NSWCA 375 at [309]-[316] (Beazley JA, Giles and Whealy JJA agreeing).

31    In those circumstances, no error in the exercise of discretion of the kind contemplated in House v King (1936) 55 CLR 499 is demonstrated.

32    But even if I were to accept that the primary judge had made an error in refusing to allow the applicant to review the Registrar’s decision, and to permit the applicant to pursue his case, the grounds of appeal against the decision of the IAA, which the applicant’s counsel said would be contended for were the appeal to proceed, were not explained.

33    I intend no disrespect to counsel, but the proposed grounds of appeal were left wholly unexplained. It was not explained to me what the “death notice” was, what the “significant harm on account of aspects of the applicant’s profile” was, or how either of those things were relevant to anything that the IAA decided.

34    All that was said in support of the grounds of appeal was in the following exchange between counsel and me:

DR CHURCHES: Yes, your Honour. Those grounds – we will call them “proposed grounds” – are in the affidavit of Mr Cifuentes, the solicitor for the applicant, my instructor. And that is an affidavit sworn on 9 August 2021.

HIS HONOUR: Yes, so that – that’s – I have that in front of me. “The applicant will rely on the following grounds.”

DR CHURCHES: Yes.

HIS HONOUR: But the first ground refers to a death notice, and the second ground is something about social stigma. I didn’t see those submissions – sorry, I didn’t see those grounds reflected in the written submissions.

DR CHURCHES: No, your Honour. We haven’t gone into the depth of those proposed grounds – only that we submit that they are arguable. Justice – we are referring at that stage to Mortimer J’s decision in CAL15 as an example of a requirement only that there be an overarching view, not an in-depth analysis of the proposed grounds, that there be a rational basis for them. We submit that the matters that go to section 473DD are now notoriously complex, and there are a number of grounds on which we would be basing these arguments. First would be, of course, that there has been –

HIS HONOUR: But just – just before you do that – sorry, Dr Churches. Forgive me for –

DR CHURCHES: Yes.

HIS HONOUR: – interrupting.

DR CHURCHES: Yes.

HIS HONOUR: But in – in order for me to be able to assess the rational basis for those grounds, what material do you rely on to enable me to do – to make that assessment about the death notice and the applicant’s profile?

DR CHURCHES: Your Honour, we haven’t put on any particular material on that aspect. We submit only that there are notoriously issues going to – or should we say openings for attack upon the way the IAA handles, and in this case handled, the section 473 exceptional circumstances issue. And also whether it has refused materials on the basis that there was not credible information under the second limb, 473DD(b)(ii). There’s always a question that now arises as to how the credibility issue has been handled. Whether it has been a preliminary rejection or whether there should have been acceptance allowing for the new information to be assessed as part of the whole matrix of materials. Now, that –

HIS HONOUR: Well –

DR CHURCHES: Those are the sorts of issues that would be raised.

35    I am unable to accept those submissions. It is necessary for an applicant in these circumstances to demonstrate a reasonably arguable case that the decision of the primary judge is affected by error. If there is no reasonably arguable case, then there can be no relevant prejudice suffered by the applicant that will be cured by allowing the extension of time. See ALQ16 v Minister for Immigration and Border Protection [2017] FCA 283 at [14] (White J).

36    For those reasons, the application for extension of time and leave to appeal must be refused with costs.

Associate:

Dated:    30 November 2021