BEX15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The Federal Circuit Court's decision 6 Noting the terms of s 477 of the Migration Act, and the two conditions it contains, the Federal Circuit Court correctly identified the question it needed to determine: There is no issue in these proceedings that the first of these conditions has been satisfied. The question then, is whether the Court is satisfied that it is in the interests of the administration of justice that an order be made extending the period within which an application may be made. 7 The applicant had filed an affidavit in the Federal Circuit Court, deposing to why there was a delay in filing his judicial review application. He deposed (at [3]) that the Tribunal denied him procedural fairness by not providing him with the country information it relied on, and giving him an opportunity to deal with it. He also alleged a number of other errors, such as failing to consider an integer of his claim and failing to give his review real and genuine consideration. He continued (at [5]-[7]): I also seek an extension of time. That after I received the decision refusing my application, I did not know what to do. I did not have a lawyer to explain to me what avenues of appeal were open to me. I asked friends who had been in such a situation and I was told that I should gather more information to include in my appeal. I then sought advise from a migration agent and I was advised to appeal the decision of the tribunal to the Federal Circuit Court of Australia. That I was then made aware that you are given 35 days to lodge an appeal to the Federal Circuit Court against a decision of the tribunal, but by then it was June 2015 and I lodged my application on 10 June 2015, which was about 20 days out of time. I say that I am only a short period of time overdue and that there will be no prejudice suffered by the Respondent and I say that my appeal has reasonable prospects of being successful. 8 I infer the applicant had some assistance in drafting his affidavit, although it was filed by him without any solicitor on the record at that stage. 9 The applicant was cross-examined at the extension of time hearing before the Federal Circuit Court. By this stage he was legally represented, having obtained legal representation over the weekend before the Federal Circuit Court hearing. His lawyer attended the hearing, and did not object to him being cross-examined. Nor did his lawyer seek an adjournment of the extension of time application. 10 The Federal Circuit Court found (at [9] of its reasons) that the applicant was "an unsatisfactory witness who gave inconsistent evidence". That was because, under cross-examination, the Federal Circuit Court found the applicant gave evidence which was inconsistent with his affidavit, in that he accepted he was told by the lawyers who had acted for him in the Tribunal's merits review process that he could apply to the Court for judicial review and that he had a limited time within which to do so. The Federal Circuit Court found (at [6]-[8]) of its reasons that the applicant did not have an acceptable explanation for the delay, that he had lawyers acting for him at the time of the Tribunal decision who were able to advise him about judicial review and time limits, and that he was "able to apply to Legal Aid and later, to locate and obtain advice from a migration agent". 11 Properly, the Federal Circuit Court nevertheless went on to consider the merits of the judicial review application, in order to determine whether, notwithstanding the absence of an acceptable explanation for the delay, an extension of time should be granted because of the preliminary view the Federal Circuit Court formed about the merits of the applicant's judicial review arguments. 12 In a relatively detailed analysis, from [14]-[26] of its reasons the Federal Circuit Court described the applicant's claims and the Tribunal's decision about them, and from [27]-[35], the Federal Circuit Court considered the grounds of judicial review as raised in the application. From [36] to [37], the Federal Circuit Court then considered additional grounds raised by the applicant's newly retained legal representative. It found the judicial review application had insufficient merit to grant an extension of time even if, contrary to the view the Federal Circuit Court had formed, there had been an acceptable explanation for the delay. It dismissed the extension of time application.

The proceeding in this Court 13 The hearing in this proceeding was initially listed for 30 August 2019. The day prior to the hearing, the applicant contacted chambers seeking an adjournment on medical grounds. He claimed that he had a severe pain in his stomach and diarrhoea and produced a medical certificate which stated: This is to certify that: [REDACTED] attended the clinic on 29 July 2019. and for the period 29/07/2019 to 30/07/2019 inclusive he will be unfit to continue his usual occupation. 14 The applicant was informed that the Court did not consider the medical certificate was adequate and the matter would not be adjourned on the basis of that certificate, but he was free to come and apply for an adjournment at the time the matter was listed for hearing. 15 The applicant subsequently forwarded a second medical certificate, which stated: This is to certify that I have examined [REDACTED] on 29th July at 23:30PM. [REDACTED] is suffering from severe gasroenteritis with diarrhoea, vomiting and abdominal pain and extreme lethargy. He had urgent treatment for above symptoms. The symptoms setled in half an hour. He was drowsy from treatment and very lethargic. He will not able function mentally today and the next 2 days. He is unfit for his normal duties from 28th to 31st July 2019. The medical certificate was completed on 29th July 2019. 16 The applicant also expanded a little more about his illness in his email. 17 I was persuaded by what the applicant said, and by the contents of the second medical certificate, that it was appropriate to grant the applicant a short adjournment. The matter was relisted for 7 August 2019, the applicant having confirmed to my chambers on 2 August 2019 that he would attend on that day. 18 The hearing proceeded with the applicant assisted by an interpreter, but still unrepresented.

Resolution 19 In an affidavit filed in this Court on 3 December 2018, the applicant deposed, relevantly, that: I attended court hearings and believe my case is not heard properly and my evidence were not taken into consideration properly. When my case was failed, I was very upset and searching help for further proceedings. I have lack of English knowledge and understanding. Therefore, it took some time for me to file this application. 20 I asked the applicant at the hearing what else he wished to say in support of his judicial review application, including why it had taken him two years to lodge it after the Federal Circuit Court orders, and what he said was wrong with the Federal Circuit Court decision. He said, in addition to what he said in his affidavit about difficulty with language, that he had changed addresses with the Department of Immigration, he did not have any other help, and even though he had paid him a fee he had not found his previous lawyer of much help. The applicant added that his wife had insisted he go ahead and apply to this Court. I permitted the applicant to make these statements without giving sworn evidence. I did not consider there was anything additional to be gained by having him state these matters under oath or affirmation. 21 I asked the applicant whether he had had the Federal Circuit Court reasons explained to him. He confirmed that he attended the handing down of the Federal Circuit Court's orders and decision, and that his lawyer also attended. He confirmed an interpreter was present and the interpreter explained the reasons to him, as did his lawyer. He stated that he had now forgotten what was in them. 22 I accept the Minister's submission that it is apparent the applicant had some access to legal representation and advice after the Federal Circuit Court handed down its decision, and that despite changing addresses, he had actual notice of the orders made by the Federal Circuit Court. 23 I turn now to the merits of the judicial review application. There were no grounds of review set out in in the s 39B application. I infer that is because the applicant did not have any assistance with this application. Given that the applicant is an unrepresented asylum seeker, for whom English is not his first language, it is unsurprising that two years after the orders were made he has not personally been able to articulate any grounds of judicial review. Therefore, it can be accepted, as the applicant states in his affidavit that he has a "lack of English knowledge and understanding". That fact, however, does not of itself make out any legal error in the approach taken by the Federal Circuit Court, especially given the applicant was represented at the Federal Circuit Court hearing, and apparently at the time it handed down its orders and reasons for those orders. 24 Despite the absence of particular grounds, and favourably to the applicant, I have taken the approach of looking carefully for myself at the Federal Circuit Court's reasons for decision. The Federal Circuit Court went through each of the judicial review grounds raised in writing and orally by the applicant's (then) newly retained legal representative. There are no apparent legal errors in the approach it took, or the conclusions it reached, let alone a legal error which might be characterised as going to the jurisdiction of the Federal Circuit Court to make the orders it did. 25 Contrary to the applicant's contention in his affidavit that his evidence was not considered properly, I find the Federal Circuit Court took careful note of his affidavit evidence, and compared it with his evidence under cross-examination, and reached conclusions which were open to it about the applicant's evidence being inconsistent. However, even if the Federal Circuit Court erred on this matter, it went on to consider the merits of the judicial review grounds raised, and did so without any jurisdictional error. 26 I accept the applicant was very upset after the Federal Circuit Court dismissed his extension of time application. I accept the applicant is likely to be very upset after the orders made on this application as well. The Court's only task is to determine whether the Federal Circuit Court decision is affected by any jurisdictional error, or error of law on the face of its record. The applicant's distress, while understandable given what is at stake for him, is not a factor to be considered in discharging that task. 27 Further, I accept the Minister's submission that the Court has a discretion to refuse relief, if there has been unexplained or disproportionate delay in bringing a judicial review application of this kind. This application was filed on 21 December 2018, more than two years after the Federal Circuit Court's orders on 2 September 2016. Had the Court identified a jurisdictional error in the Federal Circuit Court's decision, the applicant would have faced the hurdle of persuading the Court it was appropriate to grant relief, after a delay of more than two years. The applicant would have needed to persuade the Court why relief was appropriate when it appears he had legal representation at the time of the decision of the Federal Circuit Court. However, since no jurisdictional error is apparent in the Federal Circuit Court decision, I need not finally determine that matter. 28 The application will be dismissed. There is no basis for the Court to decline to make an order for costs in the Minister's favour. 29 There will be an order that the applicant pay the first respondent's costs of the application, to be fixed by way of a lump sum. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.