ABF23 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1319
•3 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ABF23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1319
File number(s): SYG 36 of 2023 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 3 December 2024 Catchwords: MIGRATION – extension of time – 13 days out of time – protection visa – inadequate explanation for delay – no reasonably arguable case for jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) s 36, 66, 412, 477
Migration Regulations 1994 (Cth) reg 4.31
Cases cited: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407
Jess v Scott (1986) 12 FCR 187
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478; FCAFC 110
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158
Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
SZTRYvMinister for Immigration & Border Protection [2015] FCAFC 86
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 919
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 26 November 2024 Place: Sydney Applicant: In Person Solicitor for the Respondents: Ms Schultz, Mills Oakley ORDERS
SYG 36 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABF23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
3 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The applicant filed on 3 January 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE PAPADOPOULOS
INTRODUCTION
Before the Court is an application filed on 3 January 2023, under s 477(2) of the Migration Act 1958 (Cth) (Act), seeking an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 November 2022.
The Tribunal found that it had no jurisdiction to consider the application for review of a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa).
The originating application was filed on 3 January 2023 (originating application), 13 days after the expiry of the 35-day filing period.
Having not been satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is dismissed for the following reasons.
BACKGROUND
The background of the matter was set out in the Minister’s written submissions, which I primarily adopt.
The applicant is a citizen of the People’s Republic of China (China).[1]
[1] Court Book (CB) 29.
On 22 November 2017, the applicant applied for the protection visa.[2] In his application for review, the applicant nominated a Gmail email address (first Gmail address) for correspondence and specifically consented to the receipt of material by way of electronic communication.
[2] CB 1-29.
In his visa application, the applicant claimed to be a member of Falun Dafa, and that the Chinese Communist Party did not allow any Chinese to believe in Falun Dafa. He claimed that it was a ‘serious matter’ and he feared ‘disappearing’ and so left China. He claimed that he would die if he returned to China, and that no one could help him.[3]
[3] CB 24-26.
On 6 September 2021, the Department wrote to the applicant at his nominated email address inviting him under s 56 of the Act to provide further information about his claims, in particular his ability to obtain a passport and depart China, and specific details about his claims to be a Falun Gong practitioner.[4] The applicant did not respond to this request for information.
[4] CB 43-50.
On 20 January 2022, the delegate refused to grant the applicant a Protection visa. In their decision record, the delegate:
(a)noted the applicant had not provided any supporting evidence regarding his claims beyond his identity document and protection visa application form despite being afforded the opportunity to do so in his application and pursuant to the s 56 invitation.[5]
(b)was not satisfied the applicant was a Falun Gong practitioner as claimed because he did not provide any detailed information or evidence about his religious beliefs, past charges/convictions in China or the harm he faced from Chinese authorities on account of being a Falun Gong practitioner.[6]
[5] CB 57.
[6] CB 58-59.
Further, based upon independent country information about the strictly regulated exit and entry procedures in China, the delegate found the applicant’s ability to obtain a passport and depart the country indicated he may not have been of adverse attention to the Chinese authorities at the time he departed China.[7]
[7] CB 57.
On 20 January 2022, the delegate refused to grant the applicant the protection visa as they were not satisfied the applicant was owed protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. The applicant was notified of the delegate’s decision by a letter dated 20 January 2022, which was sent to the applicant’s first Gmail address.
The review application
On 28 July 2022, the applicant applied to the Tribunal for review of the delegate’s decision. In his application for review, the applicant nominated a different Gmail email address to that specified in the protection visa application (second Gmail address).[8]
[8] CB 62-68.
On 9 August 2022, the Tribunal wrote to the applicant and invited him to comment in writing by 23 August 2022 on the validity of his application for review, noting that the application had been filed out of time. This correspondence and invitation were sent to the applicant’s second Gmail address.[9] The applicant did not provide a response to the Tribunal within the specified timeframe.
[9] CB 78.
On 16 November 2022 at 2.46 pm (AEDT), the Tribunal wrote to the applicant requesting him to provide a copy of the delegate’s notification letter and decision record dated 20 January 2022.[10]
[10] CB 82.
On 16 November 2022 at 3.53 pm (AEDT), the applicant sent an email to Tribunal, attached to which were copies of the documents requested by the Tribunal. Further, the applicant stated in his email to the Tribunal that:[11]
(a)his protection visa application was submitted by his previous agent who had ‘closed’ and that the applicant no longer had contact with him;
(b)all correspondence from the Department was sent to the first Gmail address, and that this was the reason he submitted his application outside of the prescribed date;
(c)his friend had helped him find the delegate’s notification letter and decision record.
[11] CB 83.
The Tribunal’s decision
On 16 November 2022 at 4.17 pm, the Tribunal made its decision. In its decision, the Tribunal:[12]
(a)found that it had no jurisdiction to review the delegate’s decision.
(b)noted that, as the applicant was not in immigration detention on the day he was notified of the decision, the application for review had to be made within 28 days commencing on that day as per subreg 4.31(2) of the Regulations.
(c)noted that the applicant was notified of the delegate’s decision by letter dated 20 January 2022, sent by email to the first Gmail address specified in the protection visa application.
(d)found that there was no evidence that there had been any change of email address, and was thereby satisfied that the applicant was notified in accordance with the statutory requirements.
(e)stated that as at the date of the decision, there had been no response to its letter of 9 August 2022.
(f)noted that the prescribed period to apply for review ended on 16 February 2022, and found that the Tribunal had no jurisdiction in the matter as the application for review was not lodged until 28 July 2022.
[12] CB 88.
RELEVANT LEGISLATION
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of the Tribunal’s decisions in respect of which this Court has jurisdiction and the basis upon which it may be extended. At the time of the Tribunal’s decision, it relevantly provided:
477 Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)
(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975— the date of the written decision under that subsection; or
(b) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5 — the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7 — the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca) in the case of a migration decision made by the Immigration Assessment Authority — the date of the written statement under subsection 473EA(1); or
(d) in any other case — the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
PROCEEDINGS IN THIS COURT
The applicant commenced proceedings by way of an originating application filed on 3 January 2023 that was accompanied by an affidavit annexing, among other things, the Tribunal’s decision dated 16 November 2022. Accordingly, the applicant had until 21 December 2022 to file his application for judicial review. Because the application was not filed until 3 January 2023, this application was brought 13 days out of time.
The applicant was afforded the opportunity to file an amended application, any further affidavit evidence and written submissions. The applicant did not avail himself of this opportunity.
CONSIDERATION
Returning to the application, the consequence of it having been filed late is that the Court must consider the two limbs of s 477(2) of the Act.
Application in writing specifying reasons
The first limb contained in s 477(2)(a) of the Act is whether the application has been made to the Court in writing detailing why the extension should be granted.
In his originating application, the applicant specified the following grounds as to why he says it is in the interests of the administration of justice for the Court to grant a time extension (reproduced without alteration):
1.I couldn’t get in touch with my previous agent since the pandemic.
2.My friend helped me to get the decision letter from AAT by my own email box.
3.I really hope that the officer would carefully consider me situation and give me another opportunity to stay in Australia legally.
Section 477(2)(a) of the Act is thus satisfied.
Necessary in the interests of the administration of justice
The second limb of s 477(2)(b) allows the Court to grant an extension of time for the filing of an application, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an Order.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 919 (Tu’uta Katoa) at [12], the High Court observed that the Court’s power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. The Act does not specify any criteria which must be satisfied to establish that it is in the interests of the administration of justice to grant an extension of time but the Court may look at a myriad of facts and circumstances including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application.
The principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that case, Jagot and Halley JJ found that the Court has an obligation to ‘evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice’.[13] Further, their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(a)the extent of the delay and explanation for it;
(b)any prejudice to the respondent if an extension were granted;
(c)the impact on the applicant if the time was not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application.
[13] BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [40].
The extent of the delay and explanation for it
As stated above at [3], the applicant’s delay in filing his judicial review application amounts to 13 days out of time. The delay is relatively short.
Typically, the longer the delay the more persuasive the explanation for that delay needs to be. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse extension of time in the case of long delay.[14]
[14] Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]; Jess v Scott (1986) 12 FCR 187 at [195].
At hearing, when asked to expand on his grounds set out above at paragraph 23 of this judgment and provide reasons for why there was a delay filing his application, the applicant stated that he ‘hopes I can extend his visa’ and commented on the difficulties of life in China. The applicant did not make any oral submissions that could be construed as an explanation for the delay in filing his judicial review application.
The Minster, relying on their written submissions, argues that the applicant written grounds and oral submissions did not constitute a satisfactory explanation for the delay. The Minister submits that it was the applicant’s responsibility to make proper enquiries and take reasonable action to make an application to the Court.[15] The Minister took me to the Fact Sheet ‘Information about decisions’ attached to the Tribunal’s notification letter to the applicant, in which it states:
[15] SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33].
Review of decisions
…If you wish to apply for review, you must do so within 35 days of the date of our decision.
Further, the Minister submits that the applicant’s explanations are entirely unsupported by any documentary evidence, rather, they are undermined by the available materials. The Minister highlights the applicant had not appointed an agent or representative in connection with the protection visa application, nor the application for review, and that all documents and correspondence was sent to the applicant’s personal email address. The Minister further observed that the applicant did not provide any details or evidence explaining why he was unable to access his email account, when he had become aware of the Tribunal’s notification and decision and how long after this time he enlisted his (unidentified) friend to obtain a copy of these documents.
Having considered the parties’ submissions and the available evidence, I am of the view that the applicant has not offered a satisfactory explanation for the delay in making this application.
In the absence of a satisfactory and acceptable explanation, this delay weighs against the grant of an extension.
Any prejudice to the respondent if an extension were granted
In oral submissions, the Minister properly submits they would not suffer any prejudice if the applicant were granted an Order allowing an extension of time, other than as to costs.
The mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing.[16]
[16] SZTRYvMinister for Immigration & Border Protection [2015] FCAFC 86 at [6].
I consider this factor neutral regarding the grant of an extension.
Public interest and impact on the applicant
There is a public interest in ensuring that administrative decisions are made lawfully. The merits of the substantive ground relied upon by the applicant, which are considered below, will be relevant in this regard. It has also been recognised that there is a public interest in the finality of administrative decisions.[17]
[17] Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [15]-[17]; [2000] HCA 67.
With regard to the impact upon the applicant, if the extension of time is refused then the Tribunal’s decision will stand, with all the consequences that follow for his protection visa application. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act, however an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth).
I accept that the impact on the applicant is significant in that they would be returned to their country of nationality which is a circumstance they claim to fear. I consider this to be a matter weighing in favour of the grant of an extension.
The merits of the substantive application
In considering whether a proposed appeal has merit, the Court will do so at a ‘reasonably impressionistic level’ by way of assessing whether the proposed grounds are ‘arguable’, ‘reasonably arguable’ or ‘sufficiently arguable’ to warrant the grant of extension of time.[18] Importantly, an applicant need only identify an ‘arguable case’ (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error that may warrant an extension being granted.[19]
[18] MZABP v Minister for Immigration & Border Protection [2015] FCA 1392 at [62]-[63], approved by the Full Court in MZABP v Minister for Immigration & Border Protection (2016) 152 ALD 478; FCAFC 110.
[19] MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158 (MZAIB).
The discretionary power to extend time is broad and there will be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. In Tu’uta Katoa at [18], the High Court provided the following examples of such circumstances (references omitted):
For example, if the delay is lengthy and unexplained, the applicant may be required to show that the case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.
In his application, the applicant relies on the following three grounds of review (reproduced without alteration):
1.THE TRIBUNAL OFFICER REFUSED MY APPLICATION BECAUSE THEY COULD NOT SATISFIED MY EVIDENCE TO SUPPORT MY CLAIMS.
2.THE TRIBUNAL OFFICER DID NOT ACCEPT THAT I WAS PERSECUTED BY CHINESE GOVERNMENT. BUT I SHOULD SAY THERE IS REALLY NO HUMAN RIGHTS IN CHINA.
3.I HAVE BEEN OUTSIDE CHINA FOR SUCH A LONG TIME. AND DUE TO COVID-19 I COULD NOT AFFORD TO GO BACK.
4.AFTER STAYING IN AUSTRALI FOR YEARS, I LOVE IT SO MUCH. AND I HAVE INDIRECTLY MADE CONTRIBUTIONS TO THIS COUNTRY. I HOPE I COULD STAY HERE.
Although invited to elaborate on these grounds at hearing, the applicant did not provide any further matters for the Court’s consideration apart from some oral submissions in relation to the plight faced by many people in China and the merits of his protection visa application.
Mindful of the Court’s obligations towards unrepresented litigants,[20] I have scrutinised the application, the materials before the Tribunal and the Tribunal’s decision to identify any jurisdictional error. I have also read the applicant’s grounds as broadly as possible and remain alive to the possibility of jurisdictional error on the Tribunal’s part. Nevertheless, I am of the view that error has not been disclosed on the Tribunal’s part and, for the following reasons, am not persuaded that a reasonably arguable case of jurisdictional error arises out of the grounds of the substantive application.
[20] MZAIB at [59]-[77], [100] and [112]-[113].
Grounds 1 and 2
Grounds 1 and 2 are misconceived. The Tribunal was not required to consider the applicant’s claims for protection in circumstances where it did not have jurisdiction to consider the matter.[21]
[21] Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407.
The delegate’s notification letter complied with s 66 of the Act and, given the operation of ss 412(1)(b) of the Act and subreg 4.13(2) of the Migration Regulations 1994, the Tribunal had no power to extend the timeframe within which the applicant could seek review. Accordingly, the Tribunal was correct to find it did not have jurisdiction to consider the matter.[22]
[22] Beni v Minister for Immigration and Border Protection [2018] FCAFC 228.
Accordingly, no reasonably arguable jurisdictional error by the Tribunal arises in relation to grounds 1 and 2.
Grounds 3 and 4
In relation to grounds 3 and 4, I agree with the Minister that these grounds are merely statements that neither disclose nor point to any jurisdictional error made by the Tribunal.
Accordingly, no reasonably arguable jurisdictional error by the Tribunal arises in relation to grounds 3 and 4.
Error in the Tribunal’s decision
For completeness, the Minister raised a potential error in the Tribunal decision. At paragraph [5] of its decision, after having outlined the contents of its letter of 9 August 2022, the Tribunal states:
As at the date of this decision, no response has been received.
As stated above at [14], on 9 August 2022 the Tribunal invited the applicant to comment on whether he had properly made an application for review within the prescribed timeframe. In the letter, the Tribunal stated that any comments from the applicant on whether a valid application had been made, were to be in writing and received by the Tribunal by 23 August 2022. The applicant did not respond to the Tribunal’s letter by 23 August 2022.
However, on 16 November 2022 at 3.53 pm AEDT, the applicant sent an email to the Tribunal containing information that could be construed as a response to the issues raised in the Tribunal’s letter of 9 August 2022 (the applicant’s statement). The applicant’s statement read:
My protection visa application was submitted by the previous agent. The previous agent was closed, and I have no contact with them. All the correspondences from the department of immigration were sent to their email address [first Gmail address] . I did not when my protection visa was refused. That is why the merits review application was submitted outside of the prescribed date.
Now my friend help me find out the Notification letter and decision record. Please see the documents attached.
I am kindly asking the member to consider my application as a valid application. Thank you very much for your help?
Kind regards,
[applicant]
The Minister submits that to the extent the Tribunal erred by not considering the applicant’s statement, this error was not material. The Minister submits that the applicant’s statement did not contain a claim that the Department had failed to send the delegate’s decision to his relevant email address, nor raise any issue with the validity of the notification decision.
There is nothing in the Tribunal’s decision which reveals that the applicant’s statement had been received or considered. Indeed, the Tribunal at paragraph 5 of its decision clearly states it had not received a response to its letter of 9 August 2022. In my view, this evinces a failure on the Tribunal’s part to consider the applicant’s statement as part of its jurisdictional assessment and thereby discloses error on the Tribunal’s part.
However, I do not find this error to be material as the decision made by the Tribunal could not realistically have been different had the error not occurred and the Tribunal considered the applicant’s statement.[23] The applicant’s statement does not address the requirements that govern the proper making of his review application and in no way contains argument relevant for the purposes of determining whether his review application had been properly made in accordance with those requirements. Further, I agree with the Minister’s submission that the applicant’s statement does not contain any claim that the delegate’s notification of their decision was invalid or defective or any information relevant to the assessment of the validity of that notification.
[23] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [14].
Therefore, no jurisdictional error arises in this regard.
CONCLUSION
As the application in this case is 13 days outside the statutory timeframe, the Court may only grant an extension of time within which the application was to be made if it is satisfied such extension is in the interests of the administration of justice.
Taking into account all of the considerations above, particularly the absence of a satisfactory explanation for the delay and lack of any reasonably arguable case of jurisdictional error on the part of the Tribunal, I am not satisfied it is in the interests of the administration of justice that time be extended in this matter.
Therefore, the application is dismissed.
I will hear the parties in relation to costs.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 3 December 2024
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