WZANX v Minister for Immigration & Anor [2009] FMCA 1010

1. that the decision was made without proper consideration of the merits of the case.
2. In a submission to the Registry of the Court by way of letter from Mr Ian Rintoul (seemingly a migration agent acting for the applicant) it was submitted that two further grounds for application ought be considered by the Court by way of amendment of the application. The Court notes that the first of those additional grounds relates to an alleged failure to comply with the provisions of s.424A of Migration Act 1958 (Cth)[2] by the failure to give a written invitation to provide further information related to the observance of the applicant's photo at an airport in Sri Lanka. The second of those additional grounds relates to an alleged failure by the Tribunal to comply with ss.424AA or 424A of the Migration Act by failing to provide information, that the Tribunal had received from the Department of Immigration and Citizenship,[3] concerning an allegation that the applicant was wanted for murder in Sri Lanka.
3. The applicant also seeks an order that the time for the making of the application be extended under s.477 of the Migration Act. The grounds for the application for extension of time are specifically set out in the application and they are as follows:
   • 1. My lack of English meant that I was not aware of Australian legal procedures
   • 2. I was not informed that it was possible for me to appeal to the Federal Magistrates Court
   • 3. My detention on Christmas Island meant that I could not access legal advice.
4. The application itself and the application for extension of time are supported by an affidavit sworn by the applicant on 9 October 2009[4] which is the date of the application. In the affidavit the applicant says, firstly, that he has been taken to the Perth detention centre; secondly, that the Federal Magistrates Court will be unable to review the decision of the Tribunal according to law if he is removed from Australia; thirdly, that he believes that he has a reasonably arguable case; and, fourthly, that he has submitted an application under s.48 of the Migration Act to the Minister for Immigration and Citizenship[5] on 18 August 2009 and that if he is removed from Australia, he believes the Minister will be unable to give proper consideration to that application.
5. The Minister opposes the application for an extension of time in which to lodge the application. There is an affidavit of Peter Corbould sworn 9 October 2009 in support of the Minister's position.[6] Many of the facts contained in that affidavit are not controversial. They include the fact that on 13 July 2009 the Tribunal affirmed the delegate's decision not to grant a protection visa to the applicant. Mr Corbould's Affidavit also annexes a letter from the applicant's then lawyers, who are also registered migration agents, to the Minister seeking his intervention to substitute a more favourable decision under s.417(1) of the Migration Act. That letter is dated 21 July 2009 which is eight days after the applicant's lawyers were advised of the Tribunal decision by letters dated 13 July 2009.
6. Mr Corbould's Affidavit goes on to indicate that on 23 September 2009, the Minister declined to consider exercising his s.417 power in relation to the applicant's case and that following that decision, arrangements were made for the applicant's removal from Australia. The applicant was advised on 30 September 2009 that it was intended that he be removed from Australia. Subsequently by a letter dated 3 October 2009, the applicant requested that the Minister exercise his discretion to intervene under s.48B or s.417 of the Migration Act. That request was refused without it being referred to the Minister as a consequence of the request being assessed or reassessed by the Department.
7. Paragraph 6 of Mr Corbould's Affidavit is perhaps the most controversial. By reference to a Department file note, it is asserted that on 18 August 2009, officers of the Department met with the applicant, amongst others, and that the applicant was advised of his right to seek judicial review of the Tribunal decision but that the applicant instead decided to seek ministerial intervention. In submissions to the Court this evening the applicant contested those particular facts, however there is no affidavit evidence to the contrary in relation to those facts and it is significant that the applicant told the Court in his submissions that he was told that only one application could be made at a time.
8. It is incontestable that the applicant did make an application to the Minister on 21 July 2009 by way of the letter to which I have already referred from his lawyers to the Minister. Further, that a further application was made by the applicant to the Minister on 3 October 2009. As I have already indicated, the former application to the Minister was made by his lawyers who are also registered migration agents, whilst the second application was made by the applicant himself.
9. The Court has the capacity to grant an extension of time in which to allow the application to be made. The relevant provisions of the Migration Act are s.477(1), (2) and (3)(b). Section 477(1) provides that an application to this Court under s.476 of the Migration Act must be made to the Court within 35 days of the date of the migration decision. The date of the migration decision is defined by s.477(3)(b) of the Migration Act as being, where a written migration decision is made by the Tribunal, the date of the written statement under s.430(1) of the Migration Act. In this case that date is 13 July 2009. In this case the application was made today, 9 October 2009. It is manifest that the application is out of time, hence the application for an extension of time.
10. Subsection (2) of s.477 of the Migration Act provides that the Court may extend the 35 day period if the Court considers it appropriate and, in particular, if the application specifies why the applicant considers that it is necessary in the interests of the administration of justice for the Court to make an order extending time, and if the Court is satisfied that it is necessary in the interests of the administration of justice to make an order extending time for the application to be made.
11. The Court notes that the test, in the interests of the administration of justice, is different to the interests of justice, and for reasons explained in Genovese v BGC Construction Pty Ltd,[7] imports considerations of management of the case by the Court.
12. The Court is satisfied by the evidence before it that the applicant and/or those acting on his behalf knew that two avenues were available to the applicant, namely either an application to the Minister or an application by way of a judicial review to this Court. The former application was chosen, and a thorough submission was made to the Minister on behalf of the applicant by his lawyers on 21 July 2009. That choice accounts for the delay in applying to this Court.
13. The Court notes that it has been a long delay, more than twice the specified statutory period. The course adopted, that is an application to the Minister, was not made once but twice. Both applications to the Minister were rejected, the latter application being made as late as 3 October 2009. It was not until that latter application was rejected that an application was made to this Court today. As the Court has indicated, the applicant or those acting for him knew that there were two avenues available and they chose to pursue one only. The pursuit of the application to the Minister is not sufficient in the Court's view to explain the failure to institute proceedings in this Court until today.
14. Whatever view the applicant personally took of what he was told does not explain why those acting for him did not apply to this Court. About that, there is no evidence and it is open to the Court to infer from the lack of evidence about that, and from the nature of the application to the Minister, and by whom it was made initially, that is, by lawyers and registered migration agents acting on behalf of the applicant, that the ministerial application was chosen in preference to judicial review by this Court and that that course of conduct entailed an implicit acceptance of the Tribunal's decision.
15. In that regard, the Court refers to what was said by the Federal Court in Das v Minister for Immigration and Multicultural Affairs,[8] namely, that the making of s.417 applications are not a special circumstance excusing the delay and warranting an enlargement of time in circumstances where the making of the application implicitly accepted that the Tribunal's decision would not be challenged. The Court also refers to the High Court's decision in Sithamparapillai; Ex parte Minister for Immigration & Multicultural Affairs[9] to similar effect.
16. Three grounds of application for an extension of time are specifically set out in the application.
17. Grounds 1 and 3 relate to the lack of English and unawareness of Australian legal procedures and the inability to access legal advice. The Court considers that there is no validity in those grounds given the nature of the application which was made on 21 July 2009 and the further application which was made on 3 October 2009. As the Court has already indicated, the former was made by lawyers and registered migration agents acting on behalf of the applicant, and was a thorough submission. The applicant cannot therefore be said to have been disadvantaged by an unawareness of Australian legal procedures or an inability to access legal advice in circumstances where lawyers acting for him have made such a submission. The nature and form of the applicant's own submission on 3 October 2009, written in English and referring to the relevant sections of the Migration Act, is also, for a self-represented litigant in the applicant's circumstances, a thorough submission which betrays no particular want of legal knowledge or an unawareness of Australian legal procedures, or an inability to access legal advice.
18. The other ground is that the applicant was not informed that it was possible for him to appeal to this Court. For reasons that the Court has already set out, the Court does not accept that proposition, but rather, accepts the proposition that a particular course of action was chosen either by the applicant or by those who were acting for him. That course of action was to prefer an application to the Minister to an application to this Court for judicial review of the Tribunal's decision.
19. In those circumstances the Court is of the view that the applicant has not established a good reason for the delay in making the application and that an extension of time ought not be granted.
20. The Court also proposes to comment, albeit briefly, upon the prospects of success of the application. The Court's view is that the prospects of success of the application would be minimal. The Tribunal decision thoroughly assesses the relevant facts and circumstances of the applicant's case. The three original grounds of application are bare and lack particularisation. However, a reading of the Tribunal's reasons for decision does not, on their face, disclose any discernible jurisdictional error or any want of procedural fairness.
21. The Tribunal has, at length, considered the merits of the applicant's case and the third ground of the application is without merit because, on its face, it invites this Court to reconsider the merits of the protection visa application which is not its task. The two additional grounds contained in the letter from Mr Rintoul, insofar as they might be considered an application to amend the grounds of the application, are also without merit. Section 424A and s.424 of the Migration Act did not require the Tribunal to invite the provision of further information from the applicant's acquaintance in Sri Lanka concerning the observation of the applicant's photo at an airport in Sri Lanka. It was for the applicant to make out his claim, not for the Tribunal to make it for him and, at least in relation to this aspect of the matter; the applicant did not make out the claim to the satisfaction of the Tribunal. In relation to the ground related to the applicant allegedly being wanted for murder and the failure of the Tribunal to provide information contrary to s.424A and s.424AA it suffices, for present purposes, to say that the information relied upon by the Tribunal did not include this material as a reason or part of the reason for its decision. That is evident from a reading an examination of paragraphs 103 to 128 of the Tribunal's decision. Therefore, no obligation arose under s.424A or s.424AA.
22. Therefore, in the Court's view the grounds for the application as made, and as proposed to be amended, do not disclose reasonable prospects of success and do not constitute grounds for granting the application for an extension of time. The Court is therefore not satisfied that it is in the interests of the administration of justice or otherwise to extend time for the making of this application. It follows that the application for an extension of time must therefore be dismissed, and it follows that the application itself must be dismissed, with costs.

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[2] "Migration Act".

[7] [2006] FMCA 1507.

[8] (2004) 208 ALR 229; [2004] FCA 489.

[9] [2004] HCATrans 364.