AFA17 v Minister for Immigration and Border Protection
[2018] FCA 488
•6 March 2018
FEDERAL COURT OF AUSTRALIA
AFA17 v Minister for Immigration and Border Protection [2018] FCA 488
Appeal from: Application for extension of time: AFA17 v Minister for Immigration & Anor [2017] FCCA 2099 File number: NSD 1725 of 2017 Judge: RANGIAH J Date of judgment: 6 March 2018 Catchwords: MIGRATION – application for extension of time within which to file notice of appeal – Tribunal complied with statutory obligations where applicant failed to appear at hearing – application dismissed Legislation: Migration Act 1958 (Cth) ss 425, 425A, 426A, 426B and 441
Federal Court Rules 2011 (Cth) rr 36.03 and 36.05
Cases cited: Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 344 Date of hearing: 6 March 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: The Applicant did not appear Solicitor for the First Respondent: Mr A Day of DLA Piper Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 1725 of 2017 BETWEEN: AFA17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
6 MARCH 2018
THE COURT ORDERS THAT:
1.The application for extension of time within which to file a notice of appeal is dismissed.
2.The applicant is to pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
RANGIAH J:
This is an application pursuant to r 36.05(1) of the Federal Court Rules 2011 (Cth) for an order that an extension of time within which to file a notice of appeal be granted to the applicant.
The applicant seeks to appeal from a judgment of the Federal Circuit Court of Australia delivered on 31 August 2017. The primary judge dismissed the applicant’s application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) given on 13 December 2016. The Tribunal affirmed a decision of a delegate of the first respondent to refuse the applicant the grant of a Protection (Class XA) visa made on 9 March 2015.
On a date which is not specified in the evidence, the Tribunal wrote to the applicant, inviting him to appear at a hearing before the Tribunal on 17 November 2016. The applicant did not appear at the hearing. The Tribunal proceeded to dismiss the application under s 426A(1A)(b) of the Migration Act 1958 (Cth) (the Act). That section allows the Tribunal, by written statement under s 426B of the Act, to dismiss the application without any further consideration of the application or information before the Tribunal.
The Tribunal’s decision record states that 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) of the Act. 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. The decision record states that the applicant did not apply for reinstatement of the application within the 14-day period, and the Tribunal found that it must confirm the decision to dismiss the application. The Tribunal made a decision on 13 December 2016 affirming the decision under review.
On 16 January 2017, the applicant filed an application in the Federal Circuit Court seeking judicial review of the decision of the Tribunal. The application relied on the following grounds of review:
Jurisdictional errors were made.
1. Tribunal does not treat my case fairly because all of my claims were not considered at all.
My claims should be considered in terms of relevant law even if I did not attend hearing.
2. Tribunal does not consider potential risks to me if I return to China.
As to the first ground, the primary judge found that the Tribunal had written to the applicant inviting him to a hearing, and that the letter informed the applicant that the Tribunal could not make a favourable decision on the information before it. His Honour found that it was for the applicant to decide whether to engage with the Tribunal’s process and that the applicant had failed to so engage. His Honour found that the Tribunal had complied with its statutory obligations in the conduct of the review. His Honour found that the decision of the Tribunal to proceed as it did was open to it, was not unreasonable and did not lack an evident and intelligible justification. His Honour found that there was no jurisdictional error discernible in the decision.
His Honour also found that the Tribunal’s notifications were sent to the correct address. His Honour rejected the applicant’s assertion, unsupported by evidence, that he did not receive them. His Honour found that the applicant was deemed to have received the notification “under the statutory provisions”. His Honour found that there was no jurisdictional error.
As to the second ground, his Honour found that the Tribunal was not required to consider the applicant’s claims in circumstances where he had failed to attend the hearing and had not sought to have his application reinstated.
In his application filed on 3 October 2017, the applicant seeks an extension of time to appeal against the judgment of the primary judge. By the operation of r 36.03 of the Federal Court Rules, the notice of appeal was required to be filed by 21 September 2017. It was filed one and-a-half weeks late. Under r 36.05, the Court has a discretion to extend the time within which to file the notice of appeal, both during and after the period mentioned in r 36.03.
The applicant relies upon a draft notice of appeal setting out the following grounds:
1. There exists wrong application of law.
The risk that the appellant will be harmed by the government if he returns to China is not properly considered.
2. There exists procedural unfairness.
Whether the delegate disclosed information to me properly is not considered.
The applicant has not appeared at the hearing. Neither has he filed any written submissions. The application, therefore, falls to be determined upon the material that has been placed before the Court by the first respondent, as well as an affidavit of the applicant and the notice of appeal.
When determining an application for an extension of time under r 36.05(1) of the Federal Court Rules, the Court will have regard to the reasons for the delay, the extent of the delay, any prejudice to the respondent and the merits of the proposed appeal: see Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 344 at 348-349.
The first respondent accepts that it is the applicant’s prospects of success in the proposed appeal that will be determinative of the application for an extension of time. The first respondent submits that the applicant has not demonstrated any arguable case of error in the judgment of the primary judge.
The first proposed ground of appeal asserts that the Tribunal made an error of law by failing to consider the risk of harm to the applicant if he returns to China. The second ground alleges a breach of procedural fairness, which seems to be directed at the first respondent’s delegate, but may be also taken to refer to the Tribunal.
The primary judge found that the Tribunal had complied with its statutory obligations, although his Honour did not identify what those obligations were.
Section 425(1) of the Migration Act provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. There are some exceptions in s 425(2) which are not presently material.
Section 425A(1) of the Migration Act provides that if an “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”. Under s 425A(2), the notice must be given to the applicant, relevantly, by one of the methods specified in s 441A. Under s 425A(3) the applicant must be given a period of notice that is at least the prescribed period and under s 425A(4) the notice must contain a statement to the effect of s 426A.
Section 426A of the Migration Act provides, relevantly:
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.
…
Reinstatement of application or confirmation of dismissal
(1B)If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
...
(1E)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.
..
(1F)If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
…
Section 426B of the Migration Act provides, relevantly:
426BFailure to appear—Tribunal’s decisions, written statements and notifying the applicant
Decisions to which this section applies
(1)This section applies in relation to the following decisions (each of which is a non-appearance decision):
(a)a decision to dismiss an application under paragraph 426A(1A)(b);
…
Written statement of decision
(2)If the Tribunal makes a non-appearance decision, the Tribunal must make a written statement that:
(a) sets out the decision; and
(b) sets out the reasons for the decision; and
(c) in the case of a decision to reinstate an application:
(i)sets out the findings on any material questions of fact; and
(ii)refers to the evidence or any other material on which the findings of fact were based; and
(d) records the day and time the statement is made.
(3) A non-appearance decision is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(4)The Tribunal has no power to vary or revoke a non-appearance decision after the day and time the written statement is made.
…
Notice to applicant
(5)The Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is taken to have been made; and
(b) by one of the methods specified in section 441A.
(6)In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).
…
The Tribunal’s written statement of decision provided under s 426B of the Act indicates that it complied with s 425 and s 425A of the Act. It records that the Tribunal exercised its discretion under s 426A(1A)(b) to dismiss the application without any further consideration of the application or information before the Tribunal. It also records that the Tribunal complied with its obligation under s 426B(5). Accordingly, I accept the first respondent’s submission that there was no error in the primary judge’s finding that the Tribunal complied with the relevant statutory requirements.
It was open to the Tribunal to proceed under s 426A(1A)(b) of the Act. The Tribunal was not required to consider the applicant’s claims for protection. When the applicant failed to apply for reinstatement within the 14 day period, the Tribunal was bound to confirm the decision to dismiss the application by s 426A(1E) of the Act. The Tribunal had no discretion in this regard. The Tribunal’s obligation was to comply with its obligations of notification under s 425, s 425A and s 426B of the Act. Having complied with those requirements, there was no procedural unfairness.
I accept the first respondent’s submission that the applicant has failed to identify error in the judgment of the primary judge. The application for an extension of time must be dismissed.
The applicant should be ordered to pay the respondent’s costs of the application.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 11 April 2018
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