BUB17 v Federal Circuit Court of Australia

REASONS OF THE PRIMARY JUDGE 7 The principles guiding the exercise of the discretion under s 477(2)(b) of the Act are well settled. The primary judge summarised them (at [41]) as follows: A starting point in the exercise of the discretion is that any matters taken into account by the Court must logically and sensibly relate to the interests of the administration of justice. Whilst there are no mandatory criteria, factors which are ordinarily taken into account include: a) the reasons for the delay; b) the length of the delay; c) whether there is any prejudice to the respondent; d) the merits of the proposed application to be considered on the basis of whether a proposed ground has a reasonable prospect of success; and e) the effect on the applicant if time is not extended. (footnote omitted) 8 As for the reasons for the delay, the primary judge said (at [43]): In dealing with applications for an extension of time in relation to migration matters, this Court and the Federal Court have repeatedly stressed the need for there to be an adequate explanation for the delay. The principle was summarised succinctly by Pagone J in these terms: 'The need to provide an adequate explanation for the delay is not something to be ignored. It has been said in numerous cases, such as the decision in Hunter Valley Developments Proprietary Limited v Cohen (1984) 3 FCR 344, that an unacceptable explanation for the delay is an important requirement in deciding whether to grant an extension.' (footnote omitted) 9 Mortimer J discussed the correct approach in assessing the merits of a proposed application for review when an extension of time is sought. Her Honour said in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585: 62 As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2). 63 The correct approach may be expressed by the use of language such as whether a ground is 'arguable', 'reasonably arguable', 'sufficiently arguable' or has 'reasonable prospects of success' (see SZTES [2015] FCA 719 at [48]; SZRIQ at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision. 10 The primary judge observed (at [42]) that the delay was "very significant". His Honour summarised the affidavits that were before him by which the applicant had asserted an explanation for the delay. The first affidavit was to the effect that (at [17): a) His Sydney-based lawyer had posted the Tribunal's decision to an address in Adelaide at which he had ceased to live. When he moved away from that address, he lost his mobile phone, which had all his contact details in it. b) As a consequence, he did not know about the Tribunal decision or the time limit in which he was required to file an application for judicial review. c) He went to collect his mail from his previous address 'about six or seven months later'. d) In February of 2016, he took legal advice about obtaining a partner visa and was advised to request Ministerial intervention with respect to his immigration status. That request was prepared for him by a lawyer but was refused on 24 March 2017. 11 The primary judge said that this evidence "obviously lacks sufficient detail for the purpose of explaining a delay of this length". 12 In a further affidavit the applicant deposed that when the Tribunal affirmed the delegate's decision, he had been told by his lawyers that they would not continue to act for him and that he should find other lawyers. The primary judge summarised the balance of the affidavit (at [19]) as follows: a) The Department of Immigration also called him, advised that his visa was going to expire soon and that he had to decide what to do. b) His previous lawyer had been assigned to him under a funded scheme and he had no experience in how to engage a lawyer. c) With reference to the claim in his first affidavit that he had moved premises, he states that there was some confusion about where 'the documents' (presumably the Tribunal decision) had been sent, and he was told by his previous lawyer that he had to wait for them to arrive so that he could take them to a new lawyer. d) When he rang his previous lawyer to find out where 'the documents' were, he was told that that lawyer was very busy. e) He was told at some point that he needed a barrister, but he did not know what that was and could not recall who told him this or when. f) At about the time of the Tribunal decision, he had a girlfriend, whom he intended to marry. The girlfriend was an Australian citizen. He could not marry her straight away because she was not yet divorced. g) His belief at that time was that if he married his girlfriend, his immigration situation might change, and so he thought that he should wait until they were married. h) He cannot recall being told of any time period in which he needed to do anything in his case and, 'I did not receive the paperwork for a long time.' i) He sought legal advice in February 2016. j) He attended on a lawyer with his girlfriend but did not understand fully the advice that he was given, as no interpreter was present. Consequently, he relied on his girlfriend to make decisions about their situation at that time. k) He has no recollection of having made a choice not to pursue judicial review at an earlier stage than he did. He was given a series of options that he did not fully understand. l) After the Ministerial intervention request was rejected, he was made aware that judicial review was his only remaining option and a friend assisted him to draft his application. 13 In a third affidavit the applicant said: a) He had made further inquiries to clarify when the request was made to the Minister to allow him to apply for a partner visa. b) The drafting of that request commenced in April 2016. c) Between May and December of 2016, inquiries were made by his former solicitor to obtain documents and information about his partner and her son for the purpose of making the request to the Minister. d) He, his partner, and her son made statutory declarations on 13 January 2017. e) He does not know why it took between February of 2016 and March of 2017 to prepare and submit his request to the Minister. (footnote omitted) 14 The primary judge said this of the explanations that had been given by the applicant: 44. The onus was on the applicant to maintain contact with his lawyer, and that included, logically, keeping his lawyer advised of any change of address. That obligation was not removed simply because he had lost his mobile phone. His second affidavit states that when he was told that the Tribunal decision had affirmed the delegate's decision, he was advised by his lawyer that they could not continue to act and that he would need to find another lawyer. There is no evidence as to when he came to learn that the Tribunal had affirmed the delegate's decision or when the Department called him to advise that his visa was going to expire. There is no evidence as to how that contact occurred chronologically in the context of him having lost his mobile phone. 45. Whilst I accept that, in his circumstances not having had experience in the past with privately engaging a lawyer, he might have been faced with a difficult task, there is no evidence as to what, if any, efforts he took, having been told that the Tribunal decision had been affirmed, to engage a new legal advisor in a timely manner. I am not satisfied that the explanation given about believing his immigration status may change if he were to be married to his girlfriend, who was an Australian citizen, is an adequate explanation for failing to take timely action with respect to this application. On one view, the applicant appears to have elected to pursue a different path in order to obtain residence in this country. 46. He claims not to have received the paperwork for a long time but makes no effort to estimate when it was he received a copy of the Tribunal decision and provides no evidence as to the circumstances in which he came to receive it. Even if the decision to pursue Ministerial intervention on the basis of his relationship with his new partner was not taken until about February 2016, when he sought legal advice in the presence of his partner, that does not explain the length of the delay from January of 2015, when the decision was made. Nor do I regard it as an adequate explanation that, when he attended to obtain legal advice with his partner, she was the main person to communicate with the lawyer and that he relied on her to make decisions about their situation at that time. 47. There is authority to the effect that an election to pursue Ministerial intervention rather than judicial review can properly be characterised as an indication that the applicant accepted the Tribunal's decision as being correct and evincing an intention not to challenge the Tribunal decision further in court. The applicant asserts that this was not the case, stating: 'At no point do I recall having made a choice not to pursue judicial review earlier. I remember being given options and not fully understanding what was the best course of action.' 48. Even allowing for his claim not to have made a conscious decision to pursue Ministerial intervention as an alternative to challenging the decision of the Tribunal in this Court, the glaring fact remains that he did not make a conscious decision to pursue a challenge in this Court in a timely fashion. 49. By his own account, it was only after the request for Ministerial intervention was rejected, on being told that judicial review was his only option, that he took action to file this application. The delay between first seeking legal advice in February 2016 and the request for Ministerial intervention on 6 March 2017 is explained on the basis that there was a period of information gathering in order to support the claim for Ministerial intervention. That explanation simply underscores the fact that for that period he was relying solely on a process other than judicial review. 50. It is well-established that being unaware of time limits imposed by the legislation is not an adequate explanation for a significant delay in filing proceedings. It does not amount to a special reason for delay because: 'In the ordinary course of events, a layperson would not be expected to be aware of the court's time limits.' 51. I am not satisfied that the circumstances of the applicant are such as to make his ignorance of the time limits an exceptional case. I am not satisfied that the applicant has provided an adequate explanation of the delay of over two years in making this application. (footnotes omitted) 15 The Minister had conceded that no prejudice would be suffered should the time to commence the proceedings be extended. The primary judge said that whilst that was a relevant concession it was not dispositive of the question of whether it was in the interests of the administration of justice to permit an extension of time. His Honour gave that factor limited weight (at [52]). 16 The primary judge took into account that if the time was not extended there would likely be serious consequences for the applicant. His Honour proceeded from the premise that a "potentially successful" judicial review was the only avenue by which the applicant might obtain a visa allowing him to remain in Australia. The weight to be given to that circumstance, his Honour said "must logically be proportionate to the merits or otherwise of any proposed grounds of review". 17 The primary judge went on to consider in some detail each of the two proposed grounds for judicial review of the Tribunal's decision. In the result, he was not satisfied that either of the grounds was reasonably arguable. 18 His Honour concluded (at [68]): Taking into account all of the matters identified, both individually and cumulatively, I am not satisfied that it is necessary in the interests of justice to extend the time with respect to either ground.

THIS APPLICATION 19 In this proceeding the onus is on the applicant to show that the judgment of the primary judge was affected by jurisdictional error. 20 By his originating application filed on 2 March 2020, the applicant seeks orders in the following terms: 1. An order in the nature of certiorari, directed to the First Respondent, quashing the decision and orders of the Federal Circuit Court in action no ADG 151/2017. 2. An order in the nature of mandamus, directed to the First Respondent, requiring it to make the following orders: a. in Action no ADG 151/2017, an order extending the time within which to apply for judicial review of the decision of the Administrative Appeals Tribunal dated 21 January 2015; and otherwise to determine action no ADG 151/2017 according to law. 3. In the alternative to order 2 above, an order in the nature of mandamus, directed to the First Respondent, requiring it to determine action no ADG 151/2017 according to law. 4. Costs. 5. Such other order as this Honourable Court thinks fit. 21 There are no grounds for judicial review specified on the face of the originating application. Nor are there any grounds of review contained in any other document filed by the applicant in this Court. 22 On 14 April 2020 the Court made orders affording the applicant the opportunity to amend his originating application so as to specify the grounds of review upon which he relies. A timeframe was set for the filing of written submissions. The applicant did not file an amended application, nor did he file submissions. 23 The applicant appeared self-represented at the hearing. He explained that he found himself in miserable circumstances, that he did not have a visa and was unable to work. He said that these hardships were exacerbated by the COVID-19 pandemic. He submitted that everything that he had said previously to the FCC and to the Tribunal and been factual. He asked the Court to approach this application in a way that would be merciful toward him. 24 At the hearing of the application it was explained to the applicant that this Court has limited powers and that its task was confined to identifying whether the judgment of the FCC was affected by jurisdictional error. 25 The difficulty for the Court is that there is no ground for judicial review giving rise to a controversy upon which it can adjudicate. The absence of any grounds for review is of itself a sufficient basis to dismiss the application. 26 The applicant had the assistance of a support person at the hearing. Although he did not apply for an adjournment, the Court has considered of its own initiative whether there should be an adjournment to enable the applicant to better prepare his case. In all of the circumstances I am not satisfied that an adjournment should be granted. There is very little possibility that the applicant's financial and other circumstances will improve in the foreseeable future so as to enable him to formulate grounds for judicial review. 27 I have read the reasons of the primary judge to assess whether there is jurisdictional error immediately apparent on the face of the reasons. No such error is apparent. The reasons contain an express and correct statement of the principles guiding the exercise of the discretion under s 477(2) of the Act. The conclusions that the primary judge reached in relation to the lack of an adequate explanation were open to be made on the material described in the reasons. It has not been suggested that the primary judge misunderstood the applicant's evidence on that topic, nor that the primary judge failed to have regard to any particular evidence upon which the applicant relied. It might be that a different judge might have arrived at a different conclusion on the same material but it is not within the power of this Court to substitute its conclusion for that of the primary judge. 28 Similarly it might have been open to another judge to place more significant weight on the circumstance that the Minister would not have been prejudiced had the extension of time been granted. However the primary judge did not commit jurisdictional error by giving that factor the very little weight that he did. 29 As to whether the proposed grounds for judicial review of the Tribunal's decision enjoyed reasonable prospects of success, in the absence of grounds alleging jurisdictional error it is not for this Court to re-perform the task of the primary judge in assessing the prima facie merits of the grounds before him. The primary judge gave detailed reasons as to why the grounds did not have reasonable prospects of success. 30 The applicant has been afforded the opportunity to orally advance grounds for judicial review at the hearing but was unable to do so. He has not taken this Court to any material from which any intended grounds for review could be inferred. 31 It follows from all that I have said that this application must be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.