AEN21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 340
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AEN21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 340
File number(s): MLG 80 of 2021 Judgment of: JUDGE GOODCHILD Date of judgment: 18 May 2023 Catchwords: MIGRATION - protection visa - decision of the Administrative Appeals Tribunal - application for extension of time - significant delay - unsatisfactory explanation for delay - no prejudice - no arguable case of jurisdictional error - application dismissed Legislation: Migration Act 1958 (Cth) ss 425, 425A, 426A, 426B, 441A, 441C, 477
Migration Regulations 1994 (Cth)
Cases cited: ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
EBS17vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187
Englezos v Secretary, Department of Social Services [2023] FCA 31
Gallo v Dawson (1990) 93 ALR 479
Hasan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 788
Jess v Scott (1986) 12 FCR 187
M211/2003 v Refugee Review Tribunal [2004] FCAFC 293
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268
MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158
MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901
SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of hearing: 4 May 2023 Place: Sydney Applicant: In Person Solicitor for the Respondents: Mr. A. Slevison of Australian Government Solicitor ORDERS
MLG 80 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AEN21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GOODCHILD
DATE OF ORDER:
18 May 2023
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) 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 GOODCHILD:
INTRODUCTION & BACKGROUND
The applicant in these proceedings (“the applicant”) is a 51-year-old citizen of Malaysia. She arrived in Australia on 22 March 2018 as the holder of a UD-601 Electronic Travel Authority visa (Court Book (“CB”) 57). On 1 June 2018, the applicant lodged an application for a Protection (subclass 866) visa (“the visa”) (CB 10 to 39).
On 5 September 2018, a delegate of the then Minister for Immigration (“the delegate”) made a decision not to grant the applicant a protection visa (“the delegate’s decision”) (CB 57 to 65).
On 1 October 2018, the applicant lodged an application with the Administrative Appeals Tribunal (“the Tribunal”) for the review of the delegate’s decision. In her review application, the applicant nominated an email address for service of documents (“the nominated email address”), and also provided a mobile number (CB 78).
On 20 June 2019, the applicant emailed the Tribunal from her nominated email address, requesting a letter confirming that she had an ongoing Tribunal proceeding for the purposes of an application to Medicare (CB 85).
On 23 September 2020, the Tribunal emailed the applicant’s nominated email address inviting the applicant to attend a hearing on 14 October 2020 at 9:30am (VIC time). In that correspondence, the Tribunal advised the applicant that at the hearing she would be provided the opportunity to give evidence and present arguments relating to the issues in her case (CB 91 to 93).
By correspondence attached to the email, the applicant was also informed that if she could not participate in the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal, or may dismiss her application for review without any further consideration of the application or the information before the tribunal (CB 92).
On 7 October 2020, the Tribunal attempted to send an SMS reminder of the hearing to the applicant’s nominated mobile number, but, delivery of the message failed (CB 98).
A further SMS reminder was sent to the applicant’s nominated mobile number on 13 October 2020, the day before the scheduled hearing. The delivery of this message also failed (CB 98).
On 14 October 2020, prior to the commencement of the hearing an officer of the Tribunal attempted to call the applicant on her nominated mobile number on 7 occasions between 9:18am and 9:45am (CB 99). There was no appearance by or on behalf of the applicant at the hearing on 14 October 2020 (CB 94 to 97).
As a result of the applicant’s failure to attend the Tribunal hearing on 14 October 2020, the Tribunal made a decision (“the Non-Appearance Decision”) to dismiss the applicant’s review application pursuant to s 426(1A)(b) of the Migration Act 1958 (Cth) (“the Act”). On the same day a copy of that decision was emailed to the applicant at her nominated email address. By correspondence attached to the email, the applicant was also informed she could make an application to reinstate her review application (CB 101 to 102).
The applicant did not apply for reinstatement. As such, on 29 October 2020, the Tribunal made a decision to confirm the Non-Appearance Decision (“the Confirmation Decision”) (CB 107 to 108) which, by virtue of s 426A(1F) of the Act, meant the delegate’s decision was taken to be affirmed.
By an application filed in this Court on 20 January 2021, the applicant seeks an extension of time to apply for judicial review of the Tribunal’s Confirmation Decision. The applicant does not refer in her application to the Tribunal’s Non-Appearance Decision and this decision was not attached to the applicant’s Affidavit in support of the application. However, I treat this review application with respect to both the Tribunal’s Non-Appearance Decision of 14 October 2020 and the Tribunal’s Confirmation Decision dated 29 October 2020.
Pursuant to s 477(1) of the Act, the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. The applicant is 63 days out-of-time in relation to the Non-Appearance Decision (dated 14 October 2020), and 48 days out-of-time with respect to the Confirmation Decision (dated 29 October 2020).
Accordingly, the applicant requires an extension of time pursuant to s 477(2) of the Act, to pursue her judicial review proceedings in this Court.
On 4 May 2023, the applicant’s extension of time application proceeded to an electronic hearing before me. At the hearing the applicant appeared unrepresented. An interpreter in the Malay language was present to assist the applicant.
This Judgment addresses whether an extension of time should be granted.
For the reasons that follow, the Court concludes that an extension of time should not be granted.
LEGAL PRINCIPLES – EXTENSION OF TIME
Section 477(2) of the Act provides that the Court may, by order, extend the 35 day period within which a substantive judicial review application can be filed, if:
(a)the applicant makes an application for extension of time in writing detailing why the extension should be granted; and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice to grant the extension.
In the present case, the applicant filed her Originating Application on 20 January 2021 seeking an extension of time, and provided therein the following “grounds” for why she believes an extension should be granted:
1.I DID NOT HAVE A LAWYER AND ADVICE THAT I COULD GO TO COURT FOR APPEAL.
2.I WAS HAVING FINANCIAL HARDSHIP AND UNAWARE THAT I COULD SEEK FOR EXEMPTION FILLING FEE AT COURT.
(As per Original)
Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
While the factors which may be considered when determining whether to grant an extension of time are not limited, as per the reasoning of the High Court, in relation to a substantively similar provision in s 477A(2) of the Act, in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[1] the most common factors considered by the Court in matters of this sort include:
(a)whether there has been a reasonable and adequate explanation for the delay (explanation);
(b)whether there is any prejudice to the Minister (prejudice); and
(c)whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time (merits of substantive application).
[1] (2022) 403 ALR 604 (“Tu’uta Katoa”) at [12]-[13].
When considering the merits of the proposed substantive application as a factor in assessing whether to grant an extension of time, the Court will do so at a “reasonably impressionistic level”.[2] 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 which may warrant an extension being granted.[3]
[2] MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585 (“MZABP”).
[3] MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158 (“MZAIB”); Tu’uta Katoa at [54].
In Tu’uta Katoa, at [19], the Court endorsed the third principle set out in SZRIQ.[4] The Court said in relation to s 477A(2) of the Act, that the provision entrusts to the Court the function of identifying and formulating the interests of the administration of justice and how they should be weighted and assessed, including by reference to the merits of the proposed application. The Court held (at [19]-[20]) that the merits of the application for judicial review could be assessed beyond an “impressionistic” basis.
[4] SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [47].
To assist the applicant who, as noted, was unrepresented at the hearing on 4 May 2023, the Court explained to her that the possible categories of jurisdictional error for migration decisions of this sort, most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question;[5]
(b)where the decision-maker ignores relevant material;[6]
(c)where the decision-maker relies on irrelevant material;[7]
(d)where the decision-maker fails to follow mandatory procedures;[8]
(e)where the decision-maker shows actual or apprehended bias;[9] and
(f)where the decision is illogical, irrational or unreasonable.[10]
[5] Craig v State of South Australia (1995) 184 CLR 163 at 198.
[6] Ibid.
[7] Ibid.
[8] SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208].
[9] SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2].
[10] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at.[11]
[11] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
CONSIDERATION
The materials before the Court include:
·the applicant’s Originating Application filed 20 January 2021;
·the applicant’s Affidavit filed in support of her Originating Application dated 20 January 2021;
·the first respondent’s Response filed 22 January 2021;
·the Court Book filed by the first respondent on 14 February 2023;
·the first respondent’s written Outline of Submissions filed 19 April 2023;
·the first respondent’s List of Authorities filed 19 April 2023;
·the supplementary Court Book filed by the first respondent on 19 April 2023; and
·the first respondent’s Affidavit of Service filed 2 May 2023.
The Court confirmed with the applicant that she had the Court Book and the written Outline of Submissions of the first respondent which had been served on her on 14 February 2023 and 20 April 2023, respectively. The matter was stood down for a period of time to allow the Malay interpreter to interpret for the applicant the written submissions of the first respondent. When the matter resumed, the applicant was asked if there was anything further she wished to say in respect of her application for an extension of time. The applicant’s responses, where relevant, will be included in my consideration of the factors below. The Court was satisfied that the applicant fully understood the proceedings and was able to properly participate in and follow the proceedings.
Length of delay
The Court notes that an extension of time is not granted as a right.[12] Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule.[13]
[12] Gallo v Dawson (1990) 93 ALR 479 at [2] per McHugh J.
[13] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
The delays in this matter are 63 days in relation to the Non-Appearance Decision and 48 days in relation to the Confirmation Decision.
The delay here is moderate and weighs against the granting of an extension of time.
Prejudice
It was conceded by the first respondent’s solicitor in written submissions filed in this Court on 19 April 2023 that the first respondent does not face any substantive prejudice if the extension was granted.
This weighs in favour of granting the extension of time.
Explanation for delay
The longer the delay in question, the more satisfactory the explanation for that delay needs to be.[14]
[14] Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
The Affidavit filed by the applicant in support of her judicial review application does not provide any explanation for the delay in commencing the proceedings in this Court. In that Affidavit, the applicant refers only to the Confirmation Decision made by the Tribunal. It is in the application as quoted above (at [18]), and the applicant’s oral submissions where she provides some detail as an explanation for delay.
With regards to the applicant’s lack of legal advice, it has been held that whilst the Court will generally provide some latitude to self-represented litigants in the conduct of matters to which they are a party, lack of legal advice alone is an insufficient excuse for failure to comply with statutory time frames.[15]
[15] Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17]; SNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]-[9].
Before me the applicant submitted that she did not know how to use email before arriving in Australia, and she was only taught by someone to use email in an informal manner. She submitted that at the time of the invitation being sent, she had stopped using her nominated email address and believed she would not receive emails to that address any more. The applicant submitted that she did not pay much attention to the correspondence regarding the Tribunal hearing as she was busy working and saving money.
I accept the first respondent’s submissions that it is well settled that a self-represented litigant’s ignorance of the time limit for making an application is not a satisfactory explanation for delay.[16]
[16] MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426 at [4]; M211/2003 v Refugee Review Tribunal [2004] FCAFC 293 at [23].
Applicants seeking review of a decision made by the Tribunal must take the necessary steps to ensure that they do what is required of them. The applicant in this matter did not do that. There is no evidence here, for example, that the applicant sought assistance from the Court or the Tribunal about what was required of her. As was recently discussed by Collier J in Englezos:[17]
As a general position, I note that an inability to obtain legal advice does not, in itself, form an adequate explanation for delay. Whilst the Court may have sympathy for a litigant in person, a failure to abide by any stipulated timeframe in the filing of an appeal by virtue of a professed ignorance of the relevant rules is not an adequate reason for delay: BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40]; SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38]; MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25]. Although a person wishing to bring an action or appeal is entitled to seek assistance from legal practitioners, it is ultimately the proposed applicant’s case and responsibility to ensure compliance with the relevant requirements; see for example SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33]…
Without good reason, a litigant in person is not inherently exempt from the rules. The time limits prescribed by the Federal Court Rules and AAT Act are not “mere aspirational guidelines” and the applicant must provide a good reason to explain the delay, particularly when that delay is lengthy: BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3]; BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40].
(Emphasis added)
[17] Englezos v Secretary, Department of Social Services [2023] FCA 31.
Although the delay in this case is a relatively short period, the Court does not consider that the applicant has provided a satisfactory explanation for the delay. This weighs against granting an extension of time.
Merit
The most critical factor for consideration when determining whether an application for an extension of time ought to be granted is whether the proposed application for judicial review has any “arguable prospect of success”.
In this regard, the Court refers to the High Court’s decision in Tu’uta Katoa as follows:
17.… it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”.[18] That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed,[19] that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.[20]
[18] CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at 452 [19].
[19] MZABP [2015] FCA 1391; (2015) 242 FCR 585 at 597 [58].
[20] Federal Court of Australia Act 1976 (Cth), s 24(1)(a).
The application for judicial review filed by the applicant on 20 January 2021 includes the following grounds of review:
1.THE ADMINISTRATIVE APPEALS TRIBUNAL MADE DECISION ON MY APPLICATION BY AFFIRMING DISMISSAL FOR PROTECTION VISA ON 29 OCTOBER 2020 AFTER ME NOT ATTENDING THE HEARING TO PRESENT ARGUMENTS AND EVIDENCE FOR MY CLAIMS.
2.I WAS TOTALLY UNAWARE ABOUT THE HEARING DATE, THAT RESULT TO A DECISION FINALISING MY APPLICATION WITH A REFUSAL BUT NOT GIVING A CHANCE REINSTATEMENT. I RELIASE ONLY AFTER NOTIFICATION ON MY VEVO APPLICATION HAD EXPIRY DATE. I THAN CONTACTED THE TIBUNAL TO PHONE AND SEEK CONSENT BUT WAS NEVER TAKEN TO CONSIDERATION AND SAID THAT THEY HAVE NO MORE JURISDICTION.
3.THE TRIBUNAL DID NOT INVESTIGATE BUT AFFIRMED THAT I DID NOT MEET THE PROTECTION CISA OBLIGATION AND MEET THE CRETERIAN OF REFUGEE. ACORDING TO MIGRATION ACT 1958 THE DEPARTMENT OF IMMIGRATION HAS NOTIFY ME THAT I HAVE SUBBITTED A VALID APPLICATION AND ALSO WHEN I SUBMITTED TO TRIBUNAL FOR REVIEW THE TRIBUNAL ACKNOWLEDGED M APPLICATION AS VALID.
4.ACCORDING TO MIGRATIONA CT 1958 – SECT 414, TRIBUNAL MUST REVIEW THE CASE IN MATTER ACORDINGLY WHEN THE APPLICATION IS LIDGED VALID UNDER SECTION 412 AND MAKE A DECISION THAT HAS TO HAVE FAIRNESS BUT IN MY MATTER TRIBUNAL DID NOT MUCH DO INVESTIGATION IN-ORDER TO GIVE A CONCLUDED DECISION. I THINK THAT TRIBUNAL DID NOT FOLLOW THE ACT.
5.I WAS NOT GIVEN A CHANCE TO MAKE AN ASSESSMENT IN RELATION TO s5H(2) TO DEFINE s5H(1) OF THE ACT AND TO PROVIDE THE EVIDENCES FOR MY CLAIM AND PRESENT MY ARGUMENTS TO VALID MY APPLICATION FOR PROTECTION VISA WIH A HEARING.
6.THEREFORE THE DECISION MADE IS NOT FAIR TO ME BECAUSE I DID’NT GET THE RIGHTS TO PRESENT MY ARGUMENTS AND PROVIDE EVIDENCES TO PROVE OF MY CLAIM ACCORDINGLY.
7.I SEEK THE COURT FOR JUDICIAL REVIEW BEEN GIVEN AGAIN FOR MY CASE.
(As per original)
The applicant’s written Outline of Submissions did not provide any supportive argument with regards to the merit of her “grounds of review”. I gave the applicant an opportunity to elaborate on the substantive “grounds of review” identified in her application, and to outline otherwise, any concerns that she might have in relation to the Tribunal’s decisions.[21]
[21] This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
The Court adopts the form of the first respondent’s written submissions whereby they categorise the applicant’s grounds of review in the following manner.
Ground 1 records the fact of the Tribunal making the Confirmation Decision on 29 October 2020 in the circumstances of the applicant’s non-appearance at the hearing on 14 October 2020, and Ground 7 requests the Court conduct a judicial review of the Tribunal’s decisions. These grounds do not disclose jurisdictional error and should be dismissed.
I agree with how the first respondent has characterised the remaining grounds of review and I adopt that form in my consideration of those grounds. In substance, the remaining grounds allege that the Tribunal failed to:
·afford the applicant procedural fairness (ground 2, 5 and 6);
·investigate whether the applicant satisfied the visa criteria (ground 3); and
·discharge its obligation to review the delegate’s decision (ground 4 and 5).
I will consider:
(c)whether the applicant was properly invited to attend the Tribunal hearing;
(d)whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance; and
(e)whether the Tribunal erred by confirming the decision to dismiss the application.
For completeness, I first set out the Tribunal’s decisions.
The Tribunal’s decisions
The Non-Appearance Decision
The Non-Appearance Decision dated 14 October 2020 provides (CB 103):
1.The review applicant was invited under s.425 of the Migration Act 1958 (the Act) to attend an audio hearing with the Tribunal at 9:30am on 14 October 2020. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The review applicant did not attend the audio hearing with the Tribunal on the day and at the scheduled time and place.
2.Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5) of the Act and that the invitation has not been returned to sender. The Tribunal accepts that the hearing invitation was sent to the email provided by the applicant but that the applicant did not respond to the hearing invitation.
3.It is acknowledged that the Tribunal sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing, but that Tribunal records show that the SMS messages appear not to have been successfully received by the applicant on the mobile phone number she had provided to the Tribunal.
4.The Tribunal also accepts that the hearing attendant attempted to contact the applicant multiple times using the mobile phone number the applicant had provided to the Tribunal but was unsuccessful in all her attempts to contact the applicant.
5.No satisfactory reason for the non-appearance has been given.
6.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
(As per original)
The Confirmation Decision
The Confirmation Decision dated 29 October 2020 provides (CB 108):
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 September 2018 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 14 October 2020 the Tribunal dismissed the application under s.426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
DECISION
5.The Tribunal confirms the decision to dismiss the application.
(As per original)
Whether the applicant was properly invited to attend the Tribunal hearing
As noted above, the applicant did not attend the Tribunal hearing scheduled on 14 October 2020, which resulted in the Tribunal dismissing the applicant’s application for review pursuant to s 426(1A)(b) of the Act.
On 23 September 2020, an email was sent from the Tribunal to the applicant’s email address provided by the applicant in her review application. Attached to that email was an invitation from the Tribunal to the applicant to participate in a hearing at 9:30am (VIC time) on 14 October 2020, noting that the Tribunal would call the applicant at the specified date and time on her nominated mobile number.
Notably, in the correspondence sent from the Tribunal notifying the applicant of the hearing, the following paragraphs are included (CB 92):
If you are not able to participate in this telephone hearing, you need to advise us as soon as possible. Please note that we will only make changes if satisfied that you have a good reason for being granted an adjournment. The Presiding Member will consider any submissions you make about why it is not suitable or possible for your hearing to proceed and you will be advised of the outcome of that consideration before the hearing. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not participate in the scheduled hearing (that is you do not answer your phone at the scheduled date and time), we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
(As per original)
The necessary requirements for a Notice of invitation to appear is set out in s 425A of the Act, which relevantly provides:
425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
In the present case, the invitation to attend the hearing:
(a)was addressed to the applicant (CB 91);
(b)clearly indicated the date, time and means by which the applicant could participate in the Tribunal hearing (CB 91);
(c)was sent to the applicant’s email address provided by her in her review application (CB 91), noting that the email notification is a method approved by s 441A(5)(b) of the Act;
(d)was provided to the applicant 21 days prior to the scheduled hearing, being a time-frame exceeding the minimum notice period prescribed by reg 4.35 of the Migration Regulations 1994 (Cth); and
(e)contained information describing the effect of s 426A of the Act and the particular consequences of a failure to attend the hearing (CB 92).
It should be further noted that, where a document was sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter – where the invitation was sent via email), the applicant is “taken to have received that document” at the time specified in s 441C of the Act (in this case, at the end of the day it was transmitted, being 23 September 2020), regardless of whether the document was actually received.[22]
[22] SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271 at [36].
The Court is satisfied that the Tribunal complied with the requirements set out in s 425A of the Act. The applicant in this matter was properly invited to attend the hearing.
No jurisdictional error arises in relation to the Tribunal’s procedural fairness obligations concerning the invitation of the applicant to the hearing. As such, I consider the applicant’s grounds 2, 5 and 6 to disclose no reviewable error and I dismiss those grounds.
Whether the Tribunal erred by confirming the decision to dismiss the application
Insofar as the applicant raises concerns in relation to the Tribunal’s Confirmation Decision, the Court notes that the applicant was notified (by email) of the Non-Appearance Decision on 14 October 2020 (CB 100 to 102).
The Court notes that, when the applicant was advised that her application had been dismissed, she was also advised that she could seek reinstatement within 14 days of receiving notice of the Non-Appearance Decision (that is, by 28 October 2020). Relevantly, the letter to the applicant provided as follows (CB 101):
As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.
A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.
You may apply to us, in writing, for reinstatement of the application by 28 October 2020. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
The applicant did not seek reinstatement or make any contact with the Tribunal prior to the Confirmation Decision being made. Section 426A(1E) of the Act provides:
If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.
In circumstances where no application for reinstatement was made by the applicant, the Tribunal was legislatively required to confirm the decision to dismiss the applicant’s application.
The Tribunal did so and provided the applicant with a written statement to that effect, in the form of the Confirmation Decision, on 29 October 2020 (CB 106 to 108).
No jurisdictional error arises in relation to the Tribunal’s Confirmation Decision. As such, I consider the applicant’s ground 3 to disclose no reviewable error and I dismiss that ground.
Whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance
As outlined by this Court in BHG22[23] (citing ACN22[24]), before the Tribunal can exercise its discretion under s 426A of the Act, an applicant must have been properly invited (under s 425 of the Act) to appear before it.
[23] BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176 (“BHG22”).
[24] ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744.
Further, ss 425 and 425A of the Act are to be read together.[25] That is, if s 425A of the Act has not been complied with, a valid notice of invitation has not been sent and the Tribunal’s powers under s 426A of the Act will not be enlivened.
[25] Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [39] (“SZFHC”).
As set out above, the Court is satisfied that the applicant in this matter was properly invited to appear at the Tribunal hearing as required by ss 425 and 425A of the Act.
Because the applicant had been validly invited to attend a hearing, but failed to appear at that hearing, s 426A of the Act was enlivened. Relevantly, that section provides:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1:Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
The applicant did not appear at the hearing on 14 October 2020. She does not dispute this. Her complaint contained in ground 4 is that the Tribunal did conduct an “investigation” before it gave a concluded decision. In the circumstances where she failed to appear at the hearing, the Tribunal was not required to conduct an “investigation”.
In the circumstances, two options were available to the Tribunal. It could either proceed to determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act) or it could dismiss the applicant’s review application without any further consideration (pursuant to s 426(1A)(b) of the Act).
The Tribunal, in this matter, chose to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act).
The Tribunal’s decision to exercise its powers in this regard is discretionary. As such, that decision must be made “reasonably”.
In the circumstances of this matter, the Court is satisfied that the Tribunal acted reasonably. Relevantly:
(a)the hearing invitation was sent to the applicant via email sent to her nominated email address and there was no evidence before the Tribunal to suggest that the applicant had not received that invitation (for example, there was no email failure notice received);
(b)after lodging her application for review (on 1 October 2018), there is evidence of the applicant contacting the Tribunal on 20 June 2019 from the nominated email address. After this interaction, there is no evidence that the applicant engaged with or made contact with the Tribunal;
(c)no further material had been provided to the Tribunal by the applicant in support of her review application;
(d)the applicant did not appear at the Tribunal hearing at the scheduled time of 9:30am (VIC time) on 14 October 2020 (CB 94 to 97).
The Court further notes that, as was explained in BHG22 (citing Sun[26] and Mohammed[27]), where an invitation to attend a hearing has been sent and complies with the requirements set out in s 425A of the Act, there is no obligation on the Tribunal to consider other ways in which an applicant can be notified of the scheduled hearing.[28] This is further reinforced by amendments to the wording of s 425 of the Act, which previously required that the Tribunal provide an applicant with an “opportunity” to appear. The current provision only requires that the Tribunal “invite” the applicant to appear.[29]
[26] Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901.
[27] Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268.
[28] SZFHC at [39].
[29] SZFHC at [41].
The Court is satisfied that the Tribunal acted reasonably in proceeding to dismiss the applicant’s application pursuant to s 426A(1A)(b) of the Act.
No jurisdictional error arises in this regard. As such, I consider the applicant’s grounds 4 and 5 to disclose no reviewable error and I dismiss those grounds.
Conclusion regarding the merits of the substantive application
The applicant conceded that she received notification to attend the Tribunal hearing, but due to circumstances at the time, did not take any action with respect to that notification. The Tribunal exercised its discretion to dismiss the application reasonably.[30] The Tribunal provided an evident and intelligible justification for the Non-Appearance Decision, noting that the applicant had been properly invited to the hearing.
[30] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [97]; EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 at [22].
On 14 October 2020, the Tribunal complied with its obligation to notify the applicant of the Non-Appearance Decision as required by s 426B(5) of the Act. The Tribunal sent the applicant an email attaching a letter which informed the applicant that her application to the Tribunal had been dismissed due to her non-appearance. This notice also contained information as to how the applicant could have her application reinstated, as required by s 426B(6) of the Act. The applicant did not seek reinstatement and the Tribunal dismissed the application for review as required to under s 426A(1E).
For the reasons outlined above, I find that the substantive application is without merit, and has no prospects of success.
CONCLUSION
The overarching consideration for the Court is whether it is in the interests of the administration of justice to grant the extension of time in the circumstances of the case. For example, where the delay is short and no injustice will be occasioned to the respondent, the interests of justice would ordinarily require the extension of time to be granted provided there was sufficient merit in the grounds of appeal to justify the hearing of the appeal.[31] However, in this case, although the delay is short, for the reasons outlined above, I find that the application is without merit and has no prospects of success such that it would not be in the interest of the administration of justice to grant the extension of time.
[31] WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [7]; Hasan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 788 at [13]-[14].
The application for an extension of time is, accordingly, refused.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 18 May 2023
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