Agt16 v Minister for Immigration

[2018] FCCA 2329

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGT16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2329

Catchwords:

MIGRATION –Application to extend time for applying for judicial review of decision made by Refugee Review Tribunal – whether adequate explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 417, 425, 425A, 426A, 441A, 441C, 476, 477

Cases cited:

Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

SZVFW v Minister forImmigration [2016] FCCA 208

SZVMG v Minister for Immigration & Anor [2016] FCCA 631

Vu v Minister for Immigration and Citizenship [2008] FCAFC 59

Applicant: AGT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 270 of 2016

Judgment of: Judge Manousaridis

Hearing date: 16 June 2017

Date of Last Submission: 16 June 2017

Delivered at: Sydney

Delivered on: 22 August 2018

REPRESENTATION

Counsel for the Applicant: Mr C Jackson

Solicitors for the Applicant: City Of Sydney Lawyers

Counsel for the First Respondent: Mr G Johnson

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act in relation to the decision made by the Refugee Review Tribunal on 30 September 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 270 of 2016

AGT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35-day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the Refugee Review Tribunal (Tribunal). By that decision the Tribunal affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Subclass 866) visa (Protection visa).

2. The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 30 September 2014, but the applicant did not file her application with this Court until 10 February 2016. The applicant submits an order extending time should be made because, if made, the applicant would have good prospects of success, the applicant’s delay has caused no prejudice to the Minister, and the applicant has a sound explanation for her delay.[1]

   [1] See amended application, “Grounds of application for extension of time”.

Principles governing exercise of power under s.477(2)

1. Under s.477(2) of the Act the Court may order the extension of the 35-day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[2]

   [2] [2013] FCA 1284, [47]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a)    Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b)    Whether there is any prejudice to the Minister;

   (c)     Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

3. His Honour further said these factors “cannot be said to exhaust all potentially relevant factors in every case”, because they “are simply sensible guidelines developed by the courts which have utility in most cases”.[3]

   [3] [2013] FCA 1284, [48]

4. The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[4] Further:[5]

   If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   [4] [2015] FCA 1391 at [63] (cases cited omitted)

   [5] [2015] FCA 1391 at [62] (cases cited omitted)

5. As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[6] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[7]

   [6] [2015] FCA 1391 at [63] (cases cited omitted)

   [7] [2015] FCA 1391 at [62] (cases cited omitted)

Course of hearing and approach

1. With the agreement of the parties I heard submissions both on whether an order under s.477(2) of the Act should be made and on the substantive merits of the applicant’s claims, indicating that, in my reasons for judgment, I will consider separately the application for an order under s.477(2) and, if I were to be satisfied that such order should be made, the substantive merits of the applicant’s claims.

Background

1. On 12 July 2013 the applicant, who is a national of Fiji, applied for a Protection visa. In her form of application (Form 866) the applicant provided details of her residential address. The applicant also provided an email address, stating that she agreed to the Department of Immigration and Border Protection (as the Department for Home Affairs was then known) (Department) communicating to her by email.[8] On 19 July 2013 the applicant notified the Department of a change in her residential address.[9]

   [8] CB8

   [9] CB24

2. By letter dated 21 January 2014 the delegate invited the applicant to attend an interview on 14 February 2014 to discuss the applicant’s application for protection.[10] According to the decision record of the delegate, the applicant did not attend the hearing that was scheduled for 14 February 2014. The interview was rescheduled after the delegate telephoned the applicant who said that she had forgotten about the interview.[11]

   [10] CB31

   [11] CB41

3. On 1 April 2014 the delegate refused to grant the applicant a Protection visa. The delegate notified the applicant of his decision by sending the decision record by registered post under cover of a letter dated 2 April 2014 to the address the applicant nominated in her Form 866.

4. On 29 April 2014 the applicant applied to the Tribunal for review of the delegate’s decision. In Part C of the form of application the applicant provided a postal address as the place to which the Tribunal should send correspondence about the application for review.[12] The Tribunal acknowledged it had received the applicant’s application for review by sending to the applicant a letter dated 1 May 2014.[13]

   [12] CB54

   [13] CB58

5. There is in evidence before me a letter dated 28 August 2014 from the Tribunal to the applicant.[14] It states the Tribunal had considered the material before it, but it was unable to make a favourable decision on that information alone. The letter then invited the applicant to appear before the Tribunal at 8.30 am on 29 September 2014 to give evidence and present arguments relating to the issues arising on the applicant’s case. The letter further stated that if the applicant is unable to attend the hearing, she should advise the Tribunal as soon as possible, noting that the Tribunal would only change the scheduled hearing if satisfied the applicant has a very good reason.

   [14] CB60

6. It is apparent, and I find, that the Tribunal issued this letter pursuant to s.425(1) of the Act which provides that the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in the decision under review. I also find the Tribunal issued the letter in the manner required by s.425A(1) of the Act. Under s.425A(2)(a) of the Act the Tribunal was required to give the applicant notice of the hearing by one of the methods specified in s.441A of the Act. One of those methods is that specified by s.441A(4) of the Act, namely, by the Tribunal or an officer of the Tribunal dating the notice and then dispatching it within three working days of the date of the document by prepaid post or by other prepaid means to, among other addresses, the last residential address provided to the Tribunal.

7. The address specified in the Tribunal’s letter dated 28 August 2014 is the address the applicant specified in her form of application for review. There is in evidence a copy of a document titled “Business Dispatch register” dated 28 August 2014.[15] It appears to be, and I find it is, a business record maintained by the Tribunal that was intended to be completed by a person who is responsible for dispatching letters by post. The document required a person to record the recipient’s name and the recipient’s address, and to tick the column on the document headed “Sent to mail room”. The document in evidence records the applicant’s name, the address the applicant provided in her application for review, and a tick in the column headed “Sent to mail room”. On the basis of this document I am satisfied the Tribunal dispatched the letter dated 28 August 2014 by prepaid post in the manner provided for by s.441A(4) of the Act to the applicant’s address specified in her application for review.

   [15] Affidavit of M Wells, annexure “A”

8. The applicant did not appear at the scheduled hearing.[16] That enlivened the discretion conferred by s.426A of the Act, which, at the time the applicant applied for a Protection visa, provided as follows:

   [16] CB62

   If the applicant:

   (a)is invited under section 425 to appear before the Tribunal; and

   (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;

   the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

9. In light of the applicant’s not having appeared before the Tribunal, the Tribunal had a choice: it could have made a decision on the review without taking any further action to allow or enable the applicant to appear before it; or, as expressly permitted by s.426A(2) of the Act, the Tribunal could have rescheduled the applicant’s appearance before it, or it could have delayed its decision on the review to enable the applicant’s appearance before it to be rescheduled. In other words, the Tribunal had a discretion about whether it should or should not reschedule the hearing the Tribunal had initially appointed, or delay its decision to allow such rescheduling to occur.

10. The Tribunal exercised its discretion in favour of making a decision on the review without taking any further action to allow or enable the applicant to appear before it. It made its decision on 30 September 2014 by affirming the delegate’s decision. In its reasons, the Tribunal referred to its having decided to so proceed:[17]

    I am satisfied that by letter dated 28 August 2014 the applicant was invited to give oral evidence and present arguments at a hearing to be conducted by me on 29 September 2014. The applicant did not respond to that letter, nor did she attend the hearing. She did not contact the tribunal to seek a postponement of the hearing, nor did she provide any reason why she could not attend at the scheduled time. In these circumstances, and pursuant to s.426A of the Act, I have decided to make my decision without taking any further action to enable the applicant to attend before me.

    [17] CB72, [4]

11. The sole ground on which the applicant proposes to challenge the Tribunal’s decision, if an order under s.477(2) of the Act is made, is that the Tribunal’s exercise of the power conferred by s.426A of the Act to make a decision on the review without taking any further action to enable the applicant to attend before the Tribunal was legally unreasonable.[18]

    [18] The Amended application also contains a ground that the Tribunal did not in fact invite the applicant to appear before it for the purpose of giving evidence and presenting arguments because the Court could not be satisfied the Tribunal had sent the letter dated 28 August 2014 in accordance with s.441A of the Act. That ground was not pressed at the hearing.

12. There is in evidence a copy of a letter dated 1 October 2014 addressed to the applicant at the address specified in the application enclosing the Tribunal’s decision record.[19] There is no evidence that this letter had in fact been posted.

    [19] CB70

Explanation for delay

1. The explanation for the applicant’s delay is contained in an affidavit she made on 2 June 2017. The applicant deposes she did not receive the Tribunal’s letter dated 28 August 2014; and she did not acquire knowledge of the Tribunal’s decision until about 14 May 2015 when she attended the Department’s office and was informed “your case has been decided and you are unlawful”. The applicant immediately contacted the Tribunal, which resulted in the Tribunal on 14 May 2015 sending to the applicant by email a copy of the Tribunal’s decision.

2. The applicant then sought the advice of a migration agent. The agent advised the applicant she needed to prove some jurisdictional error, but the agent could not identify any such error. The agent advised the applicant that the preferable option was for the applicant to apply for Ministerial intervention under s.417 of the Act. The applicant’s migration agent made an application under s.417 of the Act on 19 May 2015, and by letter dated 24 December 2015 the applicant was informed the Minister did not propose to consider the exercise of his power under s.417 of the Act. The applicant was not cross-examined, and there is no reason why I should not accept what the applicant deposed in her affidavit. I therefore accept her evidence.

3. The matters deposed to by the applicant do not disclose an adequate reason for her delay. First, the applicant appears to have made no inquiry of the status of her application for review before the Tribunal until an officer of the Department informed the applicant of the outcome of that review. That occurred on 14 May 2015, a year after the applicant lodged her application for review, and a year after the Tribunal, by its letter dated 1 May 2014, acknowledged receipt of the applicant’s application for review. It is unreasonable for the applicant not to have made some inquiry concerning the status of her application for review during that time.

4. Second, the applicant sought and received advice from a migration agent. The agent’s reference to jurisdictional error suggests that the possibility of applying to a court to challenge the decision of the Tribunal was brought to the applicant’s attention; yet the applicant decided on what the agent said was the preferable course of applying for Ministerial intervention under s.417 of the Act. Counsel for the Minister drew my attention to the following passage from the judgment of Jessup J in Vu v Minister for Immigration and Citizenship:[20]

   I do not think that the applicant’s approach to the Minister under s 351 of the Act [being equivalent to s.417 of the Act] provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “Plan B” to which resort was had once the approach under s 351 proved unsuccessful.

   [20] [2008] FCAFC 59 at [29] (Gyles and Besanko JJ agreeing)

Merits of proposed grounds

1. The applicant proposes to rely on the first of the two grounds contained in an amended application the applicant filed on 5 June 2017. That ground is as follows:

   The tribunal’s exercise of its discretion pursuant to section 426A of the Migration Act to proceed to a decision following the applicant’s non-attendance at the hearing without taking any further steps to allow the Applicant to appear before it was legally unreasonable.

   Particulars

   1.1The record suggested (but does not prove) that a letter inviting the applicant to a hearing had been sent.

   1.2Because the letter had allegedly been sent by ordinary mail, there was nothing to indicate it had in fact been received;

   1.3The applicant’s phone number was clearly shown on her file, and indeed was on the hearing for which was filled out by the tribunal on the day of the hearing;

   1.4The applicant had responded to a phone call to that number from the Minister’s delegate, and had then attended the hearing before the Minister;

   1.5The Tribunal’s reasons indicated that it would require more evidence from the applicant in order to accept that the events and circumstances were factual; in other words, the Tribunal imagined that it was at least capable of persuasion should the applicant have been able to give evidence;

   1.6The Tribunal’s reasons for proceeding to hearing, that is that an invitation was sent, that she had not requested a postponement, and that she had not given a reason for not attending, appeared either to overlook, ignore, or be indifferent to the possibility that she did not receive it.

2. Counsel for the applicant submitted that the circumstances in which the Tribunal in the case before me exercised the power under s.426A of the Act are materially indistinguishable from, and even more in favour of supporting a finding of legal unreasonableness than the circumstances considered by Judge Barnes in SZVFW v Minister for Immigration.[21] In that case her Honour held that the Tribunal exercised the power under s.426A of the Act unreasonably because, among other things, on the evidence that was before the Tribunal, it could not have been satisfied the hearing invitation had been dispatched in the manner required by s.441A of the Act; the Tribunal’s pro forma directed the review applicants to provide alternative forms of contact; the Tribunal could easily have identified another avenue of communicating with the review applicants in that case; and the Tribunal could not have been satisfied, in a practical sense, the review applicants were in fact aware of the hearing date and time. [22]

   [21] [2016] FCCA 208

   [22] I have obtained this summary from the summary of her Honour’s reasons given by the Full federal Court in Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33, at [24]

3. On appeal the Full Federal Court found no fault with the manner in which Judge Barnes approached the task of determining whether the Tribunal in that case acted unreasonably.[23] The Full Federal Court found that the decision a judge must arrive at when considering whether a power such as the one conferred by s.426A of the Act has been exercised reasonably was “fundamentally a decision which” turns on the judge’s “evaluative judgment”.[24] The High Court, however, set aside the Full Federal Court’s orders.[25] The High Court held the Full Federal Court incorrectly approached the appeal in a manner analogous to appeals brought from discretionary judgments; and the High Court held the Full Federal Court ought to have considered for itself whether the Tribunal in that case acted unreasonably. Having held the Full Federal Court’s approach on the appeal was incorrect, the High Court itself considered whether the Tribunal acted unreasonably; and all the justices found the Tribunal did not act unreasonably.

   [23] Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33

   [24] Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33, at [44]

   [25] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

1. The High Court’s orders in SZVWF were pronounced, and the reasons for judgment supporting the orders were handed down, after I heard the matter. Had I considered the matter before the High Court pronounced its orders I would have concluded, on the basis of the Full Federal Court’s judgment, that the ground on which the applicant proposed to rely was reasonably arguable and would have sufficient prospects of success if I were to make an order under s.477(2) of the Act. In light of the High Court’s orders in SZVWF, however, and the reasons for judgment supporting those orders, I cannot be satisfied that the ground on which the applicant proposes to rely is reasonably arguable. The facts and reasoning of the Tribunal before me and those in SZVWF are not materially different. It is true that in SZVWF the review applicants did not respond to the delegate’s invitation to attend an interview, whereas the applicant in the case before me did. That difference, however, is more apparent than real because the applicant in the case before me did not in fact respond to the delegate’s invitation; the applicant appeared before the delegate only after the delegate exercised his discretion by telephoning the applicant and rescheduling the interview.

2. Even if I had considered the matter before the High Court had pronounced its orders in SZVFW, and I had made an order under s.477(2) of the Act, I would have considered the question of reasonableness by applying the analysis I had applied in SZVMG v Minister for Immigration & Anor,[26] which, in my opinion, is consistent with the judgments of the justices of the High Court in SZVFW. In SZVMG I said that the question whether in any given case the Tribunal acts unreasonably in the exercise of the power conferred by s.426A of the Act is to be determined having regard to the subject matter, scope, and purpose of s.426A, and the information that was before the Tribunal at the time the Tribunal exercised the power; that the purposes of s.426A of the Act include enabling the Tribunal to complete a review in a timely manner and, in support of that purpose, to permit the Tribunal to rely on s.441A of the Act, which governs the manner in which the Tribunal may communicate with an applicant, and on s.441C of the Act, which specifies the time by which an applicant is taken to have received a communication permitted by the means provided for by s.441A of the Act; that these purposes are to be balanced with the purpose of affording an applicant fairness and substantial justice; and once the preconditions for the exercise of the power conferred by s.426A of the Act have been satisfied, then, in the absence of information before the Tribunal which suggests or ought reasonably to suggest an applicant did not attend the hearing for some particular reason, such as misadventure or illness, it would be within the range of reasonable decisions available to it under s.426A of the Act for the Tribunal to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

   [26] [2016] FCCA 631, at [29] – [32]

3. Had I applied this approach to the circumstances of the case before me, I would have concluded that none of the matters on which the applicant relies in the particulars to ground 1 of her amended application, whether considered alone or cumulatively, disclosed any unreasonableness by the Tribunal.

   a)Particular 1.1 states the record suggests, but does not prove, that the Tribunal’s letter dated 28 August 2014 had been sent. This matter can only be relevant to whether the preconditions for the exercise of the power conferred by s.426A have been satisfied. If there were no proof that the Tribunal’s letter dated 28 August 2014 were not dispatched in the manner provided for by s.441A, the Tribunal would not have been entitled to exercise the power conferred by s.426A. I have already found, however, the Tribunal did dispatch the letter dated 28 August 2014 in the manner required by s.441A of the Act; and the applicant did not submit otherwise.

   b)Particular 1.2 states there was nothing to indicate the Tribunal’s letter dated 28 August 2014 had in fact been received by the applicant. That implies the Tribunal had some duty to ensure not only that the letter had been sent but that it was also received. There is no room for any such duty, given s.441A and s.441C of the Act. These provisions entitled the Tribunal to proceed on the basis that if the letter dated 28 August 2014 had been dispatched in the manner provided for by s.441A(4) the applicant had received it by the time provided for by s.441C(4) of the Act.

   c)Particular 1.3 suggests the Tribunal was obliged to telephone the applicant when the applicant did not appear at the hearing because the Tribunal had details of her telephone number. That by itself could not have rendered the Tribunal’s not calling the applicant by telephone unreasonable. If it were otherwise the Tribunal would be required on every occasion an applicant does not attend a hearing to consider whether there are available to the Tribunal other means of communicating with the applicant and, if there are, for the Tribunal to attempt to communicate with the applicant before the Tribunal can exercise the power conferred by s.426A. That cannot be correct because it would impose a precondition to the exercise of the power conferred by s.426A of the Act that is not provided for in the text of s.426A or in any other provision of the Act.

   d)Particular 1.4 refers to the applicant’s having responded to a telephone call from the delegate and attending a hearing before the delegate. Assuming the Tribunal member was aware of that fact when it decided to exercise the power under s.426A of the Act, it would not have been capable of suggesting to the Tribunal that the applicant may not have in fact received the letter dated 28 August 2014, and therefore could not reasonably have led the Tribunal to doubt the matters s.441A and s.441C entitled the Tribunal to assume as a fact, namely, that the applicant had been notified of the invitation to attend the hearing before it on 29 September 2014.

   e)Particular 1.5 refers to the Tribunal’s indicating in its letter dated 28 August 2014 that it required further information before it could decide the application before it, and, therefore, it was open to being persuaded the applicant had a case. That, however, could be said of every invitation the Tribunal sends under s.425 of the Act. That would mean that the Tribunal’s exercise of the power conferred by s.426A of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before it would be liable to be set aside for unreasonableness in every case an applicant does not appear in response to the Tribunal’s invitation unless the Tribunal first attempts to contact the applicant to determine whether the applicant received the invitation and, if he or she did, whether the applicant intends to appear before the Tribunal and, if so, when the applicant intends to appear. That would impose a precondition on the exercise of the power conferred by s. s.426A of the Act that is not provided for in the text of s.426A or in any other provision of the Act.

   f)Particular 1.6 claims the Tribunal overlooked or was indifferent to the possibility the applicant did not receive the letter dated 28 August 2014. That implies the Tribunal was obliged to consider the possibility the letter was not received. There is no basis for the implication of any such obligation. As I have already noted, s.441A and s.441C entitled the Tribunal to assume the applicant did receive the letter.

Conclusion and disposition

1. Given the applicant’s delay in applying to this Court for a remedy under s.476 of the Act, the absence of an adequate explanation for the delay, and the applicant’s not having a reasonably arguable case on the ground on which she would have relied had I made an order under s.477(2) of the Act, I am not satisfied it is in the interests of the administration of justice that I make an order under s.477(2) of the Act extending the 35-period provided for by s.477(1) of the Act by which the applicant may bring an application for a remedy under s.476 of the Act in relation to the decision of the Tribunal made on 30 September 2014.

2. I propose, therefore, to order that the application for an order under s.477(2) of the Act be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date:  22 August 2018