BZADJ v Minister for Immigration and Border Protection

Federal Court of Australia|2017-07-28|Before: Mr P, White J

The Applicant is granted leave to commence an appeal by 4 August 2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 The Court presently has before it an application seeking an extension of time in which to commence an appeal against the decision of the Federal Circuit Court (the FCC) in BZADJ v Minister for Immigration and Border Protection [2013] FCCA 1493. The application is incorrectly expressed as an application for an extension of time in which to commence an application to lodge an application for review of a migration decision, but that error can be put to one side. 2 The extension of time sought by the applicant is substantial, as the FCC judgment was delivered on 2 October 2013. Accordingly, the 21 day period fixed by r 36.03 of the Federal Court Rules 2011 (Cth) (the FCR) expired on 23 October 2013 and the applicant did not bring the present application until 15 February 2017. In effect, the applicant seeks an extension of time of just on three years and four months. 3 By the agreement of the parties, the hearing of the application for the extension was deferred until after the decision of the High Court on the application for special leave to appeal against the decision of the Full Court of this Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (Singh). On 12 May 2017 the High Court refused a grant of special leave in the matter of Singh. 4 The Court does have the power to extend the time fixed by r 36.03. Rule 1.39 of the FCR is an express grant of power. Although the Federal Court of Australia Act 1976 (Cth) does not include an express grant of power to extend the time within which to appeal, the existence of such a power is implicit in a number of its provisions: see s 20(3)(b) and s 25(2)(b). 5 The power to extend time in which to appeal is unfettered. However, the authorities identify a number of matters bearing upon the exercise of the discretion to extend time. The decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 is commonly cited in this respect. The matters to which the Court will usually have regard are: (a) the length of the extension sought; (b) the explanation for the delay; (c) the prejudice to the applicant if the extension of time is refused; (d) any relevant prejudice to a respondent if the extension of time is granted; (e) the conduct of the parties in the litigation; and (f) the interests of justice more generally. 6 These matters are not unrelated. In particular, the greater the length of the extension sought, the greater need for the Court to be provided with a proper explanation for the delay and the Court may accept more readily claims by a respondent that the grant of the extension will cause prejudice. Likewise, the greater the period of the applicant's delay, the more readily may the Court infer that the interests of justice will not be served by the grant of the extension. 7 The power to extend time is to be exercised having regard to its purpose, namely, enabling the Court to do justice between the parties: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7]. The power is also to be exercised having regard to the rationale for the limitation period: see in an analogous context the observations of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-3. 8 An applicant for an extension of time carries the onus of persuading the Court that it is appropriate, in the circumstances of the case, for the extension to be granted. 9 I have emphasised these matters because, as will be seen, I do not regard the explanation provided by the applicant in her own affidavit made on 20 February 2017 as being reliable, let alone adequate. Nevertheless, I am persuaded, despite considerable reservations, that it is appropriate to grant the extension of time sought by the applicant. My reasons for that conclusion follow.

Factual background 10 The applicant, who is a native of Albania, arrived in Australia on 8 November 2005 on a Subclass 309 partner visa and has remained here ever since. On 20 February 2008, the then Department of Immigration and Citizenship refused to grant the applicant a Subclass 100 partner visa because it was not satisfied that she was in a genuine spousal relationship. That decision was affirmed by the Migration Review Tribunal (the MRT) on 30 March 2009. 11 The applicant then remained in Australia illegally in the period from 27 April to 13 October 2009. On 2 November 2009, the applicant sought intervention by the Minister pursuant to s 351 of the Migration Act 1958 (Cth). Some 22 months later (on 14 September 2011) the Minister declined that request. 12 The applicant then applied (on 9 November 2011) for a protection visa, but that was refused by a delegate of the Minister on 24 February 2012. The Refugee Review Tribunal (the RRT) affirmed that decision on 11 October 2012. It was the applicant's subsequent application for judicial review of that RRT decision which was dismissed by the FCC on 2 October 2013. 13 The applicant's application for a protection visa was based on a claim that, before coming to Australia, she had been in a long term de facto relationship with a man (AG) in which she had suffered considerable violence and abuse. She said that she feared further harm at the hands of AG if returned to Albania; that Albanian authorities would not protect her because Albanian women are expected to stay in one relationship throughout their lives irrespective of the way in which they are treated by their partner; and because domestic violence in Albania is tolerated. The applicant also claimed that she feared harm from her own family because of the embarrassment she had caused them by reason of her relationship with AG. 14 The RRT member positively disbelieved the account given by the applicant. He found that the applicant had not been in a de facto relationship with AG at all, let alone in a violent and abusive relationship. The member found that the applicant did not have any fear of harm at the hands of AG if returned to Albania. The RRT member noted that these were "strong adverse findings" and, in summary, gave the following reasons for them: (a) evidence obtained by the Department from sources in Albania showed that the applicant had been married in Albania to PD and that they had had three children together in the period in which she claimed to have been in the de facto relationship with AG; (b) the applicant now fraudulently represents PD to be her de facto partner in Australia when he is in fact her husband; (c) a death certificate provided by the applicant said to evidence the death of the woman represented to be PD's former wife was counterfeit; (d) the claim that the applicant had been in a long term de facto relationship with AG was wholly inconsistent with the evidence that she had been married to PD and had had three children with him; (e) the elapse of some six years after the applicant's arrival in Australia and before she made the claim for the protection visa on 9 November 2011 undermined the credibility of her claims.

The proposed grounds of appeal 15 The draft notice of appeal attached to the application for the extension of time contained a single ground of appeal. However, the applicant no longer pursues that ground. Instead, she has provided an amended draft notice of appeal containing four grounds. All have their origins in certificates issued by the Department pursuant to s 438(1) of the Migration Act to the RRT. There were four certificates, three of which were issued on 24 February 2012 and one on 2 August 2012. The certificates were to the effect that the RRT should not disclose certain material in the Departmental file to the applicant, in two instances because it would be contrary to the public interest to do so, in two instances because the material contained information affecting the personal privacy of third parties, in one instance because it would disclose the identity of a third party when the Department considered that that identity should not be disclosed and in one instance, because the information was provided to the Department in confidence. 16 In summary, the applicant's proposed grounds of appeal are: (a) the non-disclosure of the certificates issued pursuant to s 438 constituted a denial of procedural fairness; (b) the first and third certificates were invalid in that the claim of public interest lacked a proper foundation, with the consequence that the RRT should not have acted on them; (c) if the third certificate was valid, the RRT's decision not to disclose the documents relevant to that certificate was legally unreasonable; (d) even if the third certificate was valid, the RRT had committed jurisdictional error by failing to give the applicant clear particulars of the information contained in the documents to which the certificate related. 17 The effect of the first of these grounds is to raise a complaint of the kind considered in Singh, and on which the applicant in those proceedings succeeded. 18 The effect of the second of the grounds is to raise a complaint of the kind considered by Beach J in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1, this being a matter on which the applicant in those proceedings had succeeded. 19 Although the applicant's affidavits are curiously silent on the topic, I am willing to proceed on the basis that the RRT did not disclose to the applicant either the existence of the certificates or the information to which they referred.

The explanation for the delay 20 The applicant had been represented in the RRT by a migration agent who is also a solicitor. In the FCC, the applicant had been represented by the same solicitor and by counsel. 21 The Court was provided with two contradictory explanations for the delay. 22 The first was contained in the applicant's own affidavit made on 20 February 2017. In that affidavit, the applicant claimed to have been unaware of the action taken by her solicitor after the RRT decision. In particular, she deposed to being unaware that the solicitor had "taken my case to Court" and said that she had not been told that the Court had dismissed the application. She also deposed that she had not learnt anything about the FCC decision until her current solicitor had told a Ms Dani about it in February 2017 and Ms Dani had then passed on the information to her. The applicant deposed to having been informed by her current solicitor (apparently in about February 2017) that her former solicitor had "kept making applications for Ministerial intervention" and that this had continued through 2014 and 2015. Later in the affidavit, the applicant deposed that she had been told by her current solicitor in late December 2016 that an application for a refugee visa had previously been made and that she had learnt for the first time in February 2017 that the application for a protection visa had gone to court. In [47] of the affidavit, the applicant deposed: I was not aware of the court decision in 2013. I was not aware that it had been refused. If I had known, I would have instructed [the solicitor] to appeal the decision. If [the solicitor] would not do the appeal, I would try and find a lawyer who would do so. 23 The applicant's affidavit is remarkable for its superficiality and generality. The claims just summarised which the applicant makes in the affidavit are scarcely credible. It is not readily to be accepted that the applicant's former solicitor would, without her client's instructions or knowledge, commence and prosecute an application in the FCC, including by retaining counsel and would not have informed her of the outcome. The applicant has not provided any evidence to corroborate this remarkable claim. In particular, the applicant did not provide an affidavit from the former solicitor, or evidence of attempts to obtain the file of the former solicitor, or even information derived from the former solicitor. Nor did the applicant provide an affidavit from the counsel who appeared on her behalf. There is no evidence indicating one way or the other whether contact has been made by the applicant's current solicitor with her former solicitor even though the circumstances are such as to have made it natural that there would be such contact. At two directions hearings, I drew the attention of the applicant's present counsel to the prospect that the applicant's evidence may be regarded as inadequate and to the desirability of further material being provided. Despite those judicial intimations, the applicant chose not to provide a more complete account or any corroboration for her claims. 24 Another remarkable feature of the applicant's explanation for the delay is that it is inconsistent with the second explanation proffered in the affidavit which her current solicitor filed contemporaneously with the application for the extension of time. In that affidavit, the current solicitor deposed: [4] The proposed appellant accepted legal advice not to appeal the decision of Judge Burnett to the Federal Court of Australia but rather to ask the Minister for Immigration and Border Protection to intervene under Section 351 of the Migration Act. [5] The Minister has declined to intervene. 25 Regrettably, the current solicitor does not disclose the source of the information on which she relied for this part of her affidavit. It may well have been the applicant herself or Ms Dani to whom reference was made earlier, but other sources cannot be excluded. Taken at face value, this passage in the current solicitor's affidavit suggests that the explanation for an appeal not having been commenced in time is that the applicant, on advice, chose to pursue a different course, namely a request for the exercise of Ministerial discretion and that upon that attempt having failed and the applicant facing deportation, she now wishes to pursue a different course. 26 On the information available, I consider this explanation more likely to be accurate. Again, however, it is not complete. The Court has not been informed when the application to the Minister was made nor when the Minister communicated his decision to the applicant. 27 In the circumstances, I am not satisfied that the explanation provided by the applicant in her own affidavit and which has been summarised above is accurate. On my assessment, the applicant has not been frank with the Court. It is not an essential condition for the grant of an extension of time that an applicant provide a full and frank disclosure of all the matters leading to the matter being out of time: Ferocem Pty Ltd v Commissioner of Patents (1994) 49 FCR 205 at 208 (and see the cases cited therein). Nevertheless, it is an ordinary expectation that a party seeking a favourable exercise of the discretion will do so. Plainly, the present applicant has not, in the material summarised above, provided disclosure of this kind. This counts very much against the grant of the extension of time. 28 In a second affidavit made on 20 February 2017, the current solicitor deposes that she had seen the applicant and Ms Dani on 30 September 2015; that she had on 7 December 2015 made a request for documents under the Freedom of Information Act 1982 (Cth); and that she had received the documents in electronic form on 25 February 2016. The solicitor then deposed: "I did not have instructions to print or read the documents provided through the FOI request". This manner of expression left it unclear as to whether the solicitor had in fact read the documents at the time and begged the question as to why the Freedom of Information request had been made in the first place. It seems that after the applicant was taken into immigration detention in December 2016, the solicitor was again instructed by the applicant and then printed out and reviewed the documents provided by the Department in February 2016. 29 Those documents included three of the four certificates which give rise to the grounds of appeal summarised above. That is to say, the applicant by her solicitors had the means of ascertaining the existence of the certificates for a period of just on 12 months before the application for the extension of time was made. No explanation has been provided to the Court for the inactivity during this period apart from the statement by the solicitor that she did not have instructions to print or read the documents obtained pursuant to the FOI request. 30 In short this is a case in which, despite the very lengthy extension of time sought, there are obvious shortcomings in the explanations provided by the applicant for the delay in appealing against the FCC decision and in bringing the present application.

Other matters 31 If the decision to grant an extension of time turned only on the applicant's explanation for the delay, it would, having regard to the matters discussed above, fail. However, there are other matters. 32 First, there is the attitude of the Minister. Although the Minister did not consent to a grant of an extension of time, he did not oppose it either. Nor did he assert that he would suffer any relevant prejudice if the extension was allowed. Further, the Minister did not contend that there would be any relevant prejudice to the administration of justice in that event. These are particularly significant matters. 33 I consider it appropriate also to take into account that the Minister's conduct may, at least in part, provide some of the explanation for the lapse of time. I referred earlier to the affidavit of the applicant's present solicitor in which she deposed that the applicant had, following the decision of the FCC, accepted legal advice not to commence an appeal. It can be inferred from that statement that attention was given by the applicant's legal advisers in October 2013 to the prospect of an appeal. That would be an ordinary and expected occurrence in the circumstances. It can also be inferred that the legal advisers took the view that no reasonable ground for an appeal to this Court could be identified. At that time, it seems that neither the Minister nor the RRT had disclosed to the applicant or to her legal advisers the existence of the certificates, nor the fact that the RRT had made its decision on material which, in part, had not been disclosed to the applicant. Although it is not possible to be certain, it is reasonable to infer that the applicant's legal advisers may have taken a different view about the prospects of an appeal had they been aware of the four certificates issued by the Minister's delegate pursuant to s 438 or that the RRT member had relied on material which had not been disclosed to the applicant. In short this may be a case in which the delay is partly attributable to the Minister's conduct in keeping relevant information from the applicant and so not to be regarded in the same way as a delay which is solely attributable to an applicant. 34 The third consideration is that the applicant will suffer some obvious detriment if the extension of time is refused. She faces the prospect of deportation from Australia having lived here for nearly 12 years. That is a significant matter. Further, on their face and having regard to the decisions in Singh and MZAFZ, both proposed Grounds 1 and 2 appear to have reasonable prospects of success. In the case of the former, that is especially so given the quite fair acknowledgement by the Minister's counsel on the hearing of the present application that information to which the RRT member had had regard and which is the subject of at least one of the certificates goes directly to the RRT member's assessment of the applicant's credibility. That being so, it seems unlikely that this would be a case in which it would be held that the denial of procedural fairness alleged by the applicant could be said not to have had a practical consequence: cf Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] (Gleeson CJ). 35 I also note that counsel for the Minister did not contend that either Singh or MZAFZ could be distinguished from the applicant's circumstances.

Conclusion 36 In many respects this is an application which is quite out of the ordinary. The evidence provided by the applicant in support of the grant of an extension of time is unsatisfactory. The applicant has not been frank with the Court and has provided an incomplete and inaccurate explanation for the appeal not having been commenced in time. Ordinarily, matters of this kind would be fatal to an application for an extension of time, and would likely have had that effect in this case had the Minister opposed the application. Despite that, I am persuaded, by the matters earlier mentioned, that the extension of time should be granted. 37 There will be an order that the time in which the applicant may commence her proposed appeal be extended to 4 August 2017. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Although the Federal Court of Australia Act 1976(Cth)

Federal Court of Australia Act 1976(Cth)ss 20(3)(b), 25(2)(b)

Migration Act 1958(Cth)ss 351, s

Federal Court Rules 2011(Cth)rr 1.39, 36.03

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