AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 426
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426
File number(s): MLG 136 of 2022 Judgment of: JUDGE GIVEN Date of judgment: 18 May 2023 Catchwords: MIGRATION – Review of delegated summary dismissal decision by Registrar – review application made out of time – factors for extending time in context of review application – where Court did not hear matter within 14 days as contemplated by the Rules Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143, 254, 256
Federal Circuit Court of Australia Act 1999 (Cth)
Migration Act 1958 (Cth) ss 36, 425, 426, 426A, 426B, 441A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.3, 21.01 Table 21.1 item 58, 21.02
Federal Circuit Court Rules 2001 (Cth)
Cases cited: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368
Allison v Murphy [2021] FCAFC 232
AYT16 v Minister for Immigration and Border Protection [2017] FCA 252
Balakrishnan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 138
Bechara v Bates (2021) 286 FCR 166
Brar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 846
FGB17 v Minister for Home Affairs [2019] FCA 725
Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920
J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103
Kaur v The Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 616
Khroud v Commonwealth of Australia [2016] FCCA 1202; May v Longley Anor [2015] FCCA 2252
Khurana v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1068
Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
Przybylowski v Australian Human Rights Commission(No 2) [2018] FCA 473
Robson as former trustee of Estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494
Spencer v Commonwealth of Australia (2010) 241 CLR 118
SZFDE v Minister for Immigration and Citizenship (2007) CLR 232 189
SZOZO v Minister for Immigration and Citizenship [2011] FCA 944
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Winn v Registrar Morgan [2022] FedCFamC2G 252
ZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 18 May 2023 Place: Sydney The Applicant: In person Solicitor for the Respondents: Ms Harradine of Mills Oakley Lawyers ORDERS
MLG 136 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AHH22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
18 MAY 2023
THE COURT ORDERS THAT:
1.The time for the making of the application seeking review of the decision of Registrar Carney made on 10 November 2022 is extended to 14 December 2022, pursuant to r 21.02(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The application for review filed on 14 December 2022 is dismissed.
3.In addition to order 4 made by Registrar Carney on 10 November 2022, the applicant must pay the first respondent’s costs and disbursements of, and incidental to, the review application fixed in the sum of $1,780.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
I have before me an application for review of a decision by a Registrar who, on 10 November 2022, made an order summarily dismissing the applicant’s application for judicial review (summary dismissal order). At the time that the Registrar made the summary dismissal order, he had power to do so pursuant to s 254(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act), read together with r 21.01, item 58 of Table 21.1 and
r 13.13 of the Federal Circuit And Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). The combined effect of those provisions is that a Registrar of this Court has delegated power to summarily dismiss a proceeding.
Section 256(1) of the Court Act has the effect that a party to a proceeding in which the Registrar has exercised delegated powers under s 254 may apply to the Court for review of the exercise of that delegated power within a prescribed time.
In that respect, rr 21.02 and 21.03 provide for the following:
21.02 Time for application for review
(1) For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.
(2) The time prescribed by subrule (1) may be extended in a proceeding:
(a) by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or
(b) with the consent of the parties to the proceeding.
21.03 Application for review
(1) An application for review of an exercise of power by a Registrar must be in accordance with the approved form.
(2) An application must be listed for a hearing as soon as possible and, unless it is impractical to do so, within 14 days after the date of filing.
(3) The applicant must serve a sealed copy of the application on each other party to the proceeding within 7 days after it is filed.
(4) Unless the Court or a Registrar otherwise orders, the application does not operate as a stay of the exercise of the power under review.
The applicant did not apply to the Court for review within the prescribed timeframe, nor (prior to the hearing today, and in the circumstances detailed shortly) did he formally seek an extension of time.
Since the time at which the r 13.13 power of the Court was first delegated to Registrars pursuant to Part 21 of the Rules and s 256 of the Court Act, there have been a significant number of cases in which that delegation has been exercised, but relatively few subsequent review applications. As such, there are limited examples of how the Court has exercised the review power and, more specifically, how the seven-day time limit has been approached where an application is out of time by reference to r 21.02 of the Rules.
Extension of time
By his written submissions, the Minister says that the application for review of a Registrar’s decision filed out of time is incompetent because no extension of time has been sought. The Minister says that this procedural irregularity is, of itself, a sufficient basis for the application to be dismissed, citing the following decisions of his Honour Judge Vasta:
(a)Kaur v The Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 616 at [15];
(b)Khurana v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1068 at [11] to [12];
(c)Winn v Registrar Morgan [2022] FedCFamC2G 252 at [14]; and
(d)Brar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 846 at [17].
Notwithstanding that submission, the Minister also quite properly acknowledges that the Court has a broad discretion under r 21.02 of the Rules to extend time for the review. In each of the four cases cited at [6] above, the Court took the view that failure to comply with r 21.02 of the Rules rendered the application incompetent, and his Honour dismissed each application accordingly (with detailed reasons). An important distinction between this matter and the cases cited at [6] above is that in each of those matters the Court determined the review application on the papers, after affording the parties the opportunity to file written submissions.
As Judge Vasta recorded in Brar (supra) at [15], that opportunity to file written submissions was given not only to ensure the efficient management of the proceedings, but also to give the applicant a further chance to seek an extension of time. In Brar, notwithstanding that applicant had filed an Affidavit (which his Honour treated as a submission) the applicant did not request (by that or any other document) an extension of time. It is open to infer the following:
(a)had the applicant made such an application, Judge Vasta was open to consider it; and
(b)that in the cases referred to at [6] above other than Brar, the respective applicants also made no such applications for an extension of time (by submissions or otherwise) and, accordingly, his Honour proceeded to determine the matters on the papers in circumstances where there were no applications for extension of time before him.
Arguably, in circumstances where an applicant (particularly an unrepresented applicant) is seeking review it might be taken as implicit that, if filed beyond seven days, the applicant is also desirous of seeking the indulgence of time being extended so that their application is competent to be heard.
However, the Rules provide a time limit for a reason. The prescribed period in r 21.02 of the Rules is also (no doubt intentionally) brief. Where applicants do not apply for review within time and do not seek, by the application itself or in any other way (including by submissions (whether written or oral)), a requisite extension, then the review application is liable to be dismissed as incompetent in the manner found by Judge Vasta in the aforementioned cases.
Unlike the cases cited at [6] above, I listed the present application for an oral hearing and did not determine it on the papers. As such, the applicant has appeared before the Court today and, in the course of an exchange with him specifically on the issue of his application being out of time, the applicant sought that time be extended. When asked why it was that his application was out of time, the applicant said that there were “procedural errors”. He said that he found a law firm, but he could not otherwise explain the delay. Despite the fact that on the face of the review application, the applicant is not represented, I am prepared to accept that he may have retained a person, whether they are a lawyer or not, to assist him in preparing his application for review.
I am also prepared to accept the applicant’s submission outlined above as being an oral application for an extension of time. In other applications for extension of time in this jurisdiction, for example, under s 477 of the Migration Act 1958 (Cth) (Act), there are no mandatory statutory criteria for assessing whether to extend time, other than whether it is in the interests of the administration of justice to do so. Similarly, r 21.02 of the Rules does not prescribe any criteria for the exercise of the Court’s discretion to extend time in the review of a Registrar’s decision (noting that r 21.02(2)(a) provides that the Court may do so on any terms it thinks fit, or if the parties consent.
In respect of the parties’ consent, which is provided as an alternative in r 21.02(2)(b), even if the parties were to consent to an extension of time, the Court retains its discretion: see Balakrishnan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 138 at [35] to [36]. The Court would take any consent by a respondent into account as being a relevant consideration to the exercise of its discretion to extend time in this context, but it is not necessarily a determinative factor.
The Minister’s position this morning in respect of the applicant’s oral application for an extension of time was, again, to note the Court’s broad discretion but to concede that there was no prejudice to the Minister if time were to be extended. The Minister additionally submitted that it would be preferable for the Court to decide the summary dismissal application on its merits, albeit maintaining that the application for judicial review lacks a reasonable prospect. I agree with the proposition that it would be preferable for the Court to decide this matter on its merits, and that this is a more practical approach in the present case.
In the absence of prescribed statutory criteria, I am of the view that the matters which relevantly arise to inform the exercise of the Court’s discretion to extend time under r 21.02 might include those which are commonly considered in an application under s 477 of the Act, such as:
(a)the period of delay;
(b)the explanation for it, noting that given that the time period in r 21.02 is brief indeed, and the general principle that the longer the delay, the more persuasive the explanation for it must be (see Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] per Wigney J), but that the seven-day period will require a proper explanation in the event that it is not met; and
(c)any prejudice to the parties.
In the instant matter, the period of delay is some weeks. Any application ought to have been made by 17 November 2022. The review application records, on its face, having been filed on 13 December 2022. As the solicitor for the Minister notes this morning, because it was filed after 4.00pm, it should be deemed as having been filed on 14 December 2022. Accordingly the application is approximately a month out of time. This is not an objectively lengthy period although that characterisation may take on a different hue by reference to the seven-day limit. By reference thereto the application was made almost four times beyond the period prescribed.
Given the Court’s broad and general discretion in respect of r 21.02 of the Rules, and to take a practical approach of the kind that the Court has indicated as being preferable in other contexts where unrepresented applicants make technically incompetent applications to this Court. I am however of the view that in the absence of prejudice to the Minister and where the parties are before me today and able to proceed, it is preferable to deal with this matter to finality and in order to do so, to first extend time: see Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103.
There is another reason in addition to the above matters, that time might warrant extension so that the proceedings can be dealt with in a substantive way. In addition to the interests of justice and practicality, there is another aspect to Part 21 of the Rules to which regard should be had. Aside from providing a time period in which applicants must seek review, the Rules also prescribe that the review be heard within 14 days of that application, unless it is impractical to do so. In this matter, a review of the Court file shows that the application for review was lodged for filing on 14 December 2022.
For reasons which are not clear, but about which I make no particular criticism, the Registry did not accept that application for filing until 3 January 2023. Thereafter, the matter was not docketed to a Judge immediately. The proceedings were docketed to me on 28 March 2023, at which time I listed them at the earliest practicable opportunity before me. While regrettable that the matter could not be as swiftly accommodated as the Rules anticipate, there does not appear to be any issue arising from that delay, and it has not been to the detriment of the applicant.
Where the Court has not been able to adhere to its own preferred timeframes in this context, in this case, I consider it is an additional factor warranting an extension of time being granted to the applicant, and that this is both the accountable, and appropriate, course. The comments which I have just made should not be taken as suggesting that there would never be a context in which the extension of time for a review application should be refused, nor, that even where the Court could not hear the matter within the anticipated 14 days, this would automatically entitle an applicant to such an extension.
Each case must be considered on its own facts and circumstances and in the full context in which the review arises. There may also be circumstances in which the time period is so significant that the application might, in all the circumstances, even be considered to be an abuse of process. However, in the present matter, I am satisfied that it is appropriate in the exercise of my discretion to extend time up to and including 14 December 2022.
Application for review
Time having been extended, the Court has before it a competent application for review of the Registrar’s decision taken in accordance with a delegated power.
As is now well-established, the exercise of the Registrar’s delegated power derives its validity from the availability of review by a judge of this Court: see Bechara v Bates (2021) 286 FCR 166 at [3] per Allsop CJ, Markovic and Colvin JJ. The Registrar’s order, which was made on 10 November 2022, took effect as though it were an order of a judge of this Court, on the basis that a judge may be asked to make an order in place of the exercise of delegated authority.
While sometimes described as being a “check” on the s 254 power, the task which falls to this Court in reviewing the decision of the Registrar is not a review in the sense that the Court is required to consider the existence of error and, absent such error, must otherwise confirm the decision. A review application is not an appeal. Relevant principles from Becharav Bates (supra), as well as from the decision of Robson as former trustee of Estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494, were helpfully distilled by the Full Court in Allison v Murphy [2021] FCAFC 232 at [11] per Besanko, Colvin and Downes JJ.
While the cases referred to in [23] and [24] above were each concerned with a review of a Registrar’s decision in the bankruptcy jurisdiction of the Court, the principles discussed in those cases have relevance to a review of a Registrar’s decision in a migration proceeding. Where a Registrar of this Court has dismissed an application for judicial review in a migration decision, the Court is not reviewing the decision of the Registrar to ascertain its correctness. Rather, the Court hears the application for summary dismissal again itself, unaffected by what has gone before. The Court is also able to take whatever evidence, and have regard to any documents, that are required: see Kaur, Khurana, Winn and Brar (supra).
Despite being an application by the applicant for review of a Registrar’s decision, the moving party before the Court this morning is, in reality, the Minister, seeking summary dismissal even though the applicant has advanced the review application.
BACKGROUND
On 14 January 2022, the applicant filed an application for an order to show cause pursuant to s 476 the Act, seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 5 January 2022. When the applicant failed to attend his scheduled hearing before the Tribunal on 16 December 2021, the Tribunal dismissed his review application pursuant to s 426A(1A)(b) of the Act without further consideration of the application or the information before it (non-appearance decision). The applicant did not seek reinstatement. Accordingly, on 5 January 2022, the Tribunal confirmed its decision to dismiss the application (confirmation decision).
In this Court, the applicant has only sought judicial review of the confirmation decision dated 5 January 2022.
The applicant is a male citizen of Taiwan who arrived in Australia on 25 April 2019 as the holder of a Working Holiday (Subclass 417) visa (CB 8).
On 26 April 2019, the applicant lodged an application for a Protection visa (CB 1-18) in which he made brief claims to fear harm from gangsters in Taiwan who tried to force him to pay a fee to protect his property (CB 12 to 13).
On 3 June 2020, a delegate of the Minister (delegate) refused to grant the applicant a Protection visa (CB 39 to 49). On the basis of independent country information which indicated the Taiwanese authorities were willing and able to provide effective protection from organise crime, the delegate was satisfied there were effective protection measures available to the applicant in Taiwan such that he did not meet s 36(2)(a) or s 36(2)(aa) of the Act (CB 48).
The Tribunal’s decision
On 4 June 2020, the applicant applied to the Tribunal for review of the delegate’s decision and gave the Tribunal a copy of the delegate’s decision record (CB 50 to 62). The applicant did not appoint a representative but provided an Outlook email address and mobile number for contact purposes (CB 51).
On 14 October 2021, the Tribunal wrote to the applicant at his nominated email address to inform him that it proposed to schedule a hearing by Microsoft Teams due to the COVID-19 pandemic (CB 69). The email requested that the applicant inform the Tribunal within seven days if he did not have the appropriate technology or there were other barriers which would prevent him from participating in a hearing by Microsoft Teams. The applicant did not respond.
On 2 November 2021, the Tribunal wrote to the applicant at his nominated email address and invited him to appear at a hearing by Microsoft Teams scheduled for 18 November 2021 at 3:30pm (CB 70 to 78). The applicant did not respond to the hearing invitation and did not otherwise contact the Tribunal prior to the scheduled hearing.
On 18 November 2021, the applicant did not appear at the scheduled hearing (CB 80).
On 19 November 2021, the Tribunal dismissed the review application under s 426A(1A)(b) of the Act (CB 85 to 86).
On 29 November 2021, before the period in which the applicant could seek reinstatement had expired, the Tribunal revoked its decision of 19 November 2021 and reopened the applicant’s case (CB 90 to 93). The Tribunal’s decision record indicates that, after it had made its decision, it discovered that the hearing link was not working and would not have allowed the applicant to attend the hearing by video (CB 91 at [4]). It found the effect of this error was that the invitation to the applicant to appear before the Tribunal was not “real and meaningful” and the Tribunal had accordingly failed to meet its obligation under s 425(1) of the Act (CB 92 at [12]). In those circumstances, the Tribunal found it was appropriate to reopen the matter (CB 93 at [15]).
On 1 December 2021, the Tribunal again wrote to the applicant at his nominated email address and invited him to appear at a hearing by Microsoft Teams scheduled for 16 December 2021 at 2:00pm (CB 94 to 97). The Tribunal’s hearing invitation also provided the applicant with an alternative option to join by telephone by calling a specified telephone number (CB 95). Under the subheading “What will happen if you don’t appear”, the Tribunal’s hearing invitation informed the applicant that if he failed to appear by joining the Microsoft Teams meeting at the scheduled time, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it (CB 96). The attached factsheet “Information about hearings” also informed the applicant, under the subheading, “What if I cannot attend the scheduled hearing?”, that if he did not appear via Microsoft Teams at the scheduled time, then the Tribunal may dismiss the application for review (CB 77 to 78).
The applicant did not respond to the hearing invitation and did not otherwise contact the Tribunal prior to the scheduled hearing.
On 9 and 15 December 2021, the Tribunal sent SMS hearing reminders to the applicant’s nominated mobile telephone number (CB 79). The message stated: “Reminder – your AAT hearing is on 16/12/21. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.” Both messages failed to deliver (CB 79).
On 16 December 2021, the applicant failed to appear at the scheduled hearing. The Tribunal’s hearing record indicates the hearing was declared “No show” at 2:30pm (CB 98). At 3:21pm, the Tribunal elected to proceed under s 426A(1A)(b) of the Act and dismissed the review application without any further consideration of the application or the information before it (CB 103-104).
In exercising its discretion under s 426A(1A)(b), the Tribunal considered that the applicant:
(a)was informed on 14 October 2021 that the hearing would proceed by Microsoft Teams unless he indicated he had any concerns with this hearing method, and the applicant did not respond (CB 103 at [1]);
(b)was invited under s 425 of the Act to appear before the Tribunal on 16 December 2021 at 2:00pm, was provided with detailed instructions on how to join the hearing using Microsoft Teams, and was also given the alternative option of appearing by telephone (CB 103 at [5]);
(c)was informed that if he failed to attend the hearing, then the Tribunal may dismiss the application for review without any further consideration of the application or the information before it (CB 104 at [6]);
(d)was sent SMS hearing reminders five business days and one business day prior to the scheduled hearing to the last mobile phone number the applicant provided in connection with the review, but those messages failed to deliver (CB 104 at [6]);
(e)did not respond to the hearing invitation and had not engaged with the Tribunal since lodging his review application on 4 June 2020 (CB 104 at [6]);
(f)did not appear before the Tribunal at the scheduled hearing and there was no evidence that he joined the hearing by clicking on the link in the hearing invitation at the scheduled time, or that he called the telephone number in the hearing invitation as instructed (CB 104 at [7]); and
(g)did not contact the Tribunal by any other means (CB 104 at [7]).
The Tribunal was satisfied the applicant was properly invited to a hearing in accordance with s 441A(5) of the Act and that no satisfactory reason for his non-appearance had been given (CB 104 at [7]). In those circumstances, it decided to dismiss the application pursuant to s 426A(1A)(b) of the Act (CB 104 at [8]).
A copy of the Tribunal’s non-appearance decision was sent to the applicant at his nominated email address at 3:32pm on 16 December 2021 (CB 101). The attached covering letter expressly informed the applicant that he could apply in writing for reinstatement by 30 December 2021 (CB 102). The applicant did not apply for reinstatement or otherwise contact the Tribunal.
On 5 January 2022, the Tribunal confirmed the decision to dismiss the application (CB 107 to 108). The Tribunal found the applicant was notified of the non-appearance decision in accordance with s 426B(5) of the Act and was advised that a failure to seek reinstatement within 14 days would result in confirmation of the decision (CB 108 at [3]). As the applicant did not apply for reinstatement, the Tribunal found it was bound to confirm the decision to dismiss the application (CB 108 at [4] to [5]).
On 14 January 2022, the applicant filed an application in this Court seeking judicial review of the Tribunal’s confirmation decision only.
APPLICATION TO THIS COURT
The applicant commenced these proceedings by an application to show cause filed with the Court on 14 January 2022. By a Response filed for the Minister on 25 January 2022, the applicant was expressly notified of the Minister’s view that the application had no reasonable prospect of success. Despite that notice, the applicant did not avail himself of the opportunity afforded by the orders made on 22 April 2022 to file and serve any amended application or Affidavit, nor to file written submissions at any juncture.
At the conclusion of an interlocutory hearing on 10 November 2022, the Registrar made the summary dismissal order pursuant to r 13.13(a) of the Rules, together with and order for costs.
Review application
On 13 December 2022, the applicant filed the instant review application by which he seeks the following orders:
1.That the review is allowed
2.The orders made by Registrar Carney on 10 November 2022 be set aside and in lieu thereof it be ordered that the application be remitted to AAT for reconsideration.
3.The First Respondent pay the Applicant’s costs of the review and of the application before His Honour.
4.Such further or other order as the Court sees fit.
The Affidavit in support of the review application simply attaches the Registrar’s orders and indicates that the applicant is seeking review of them. No written submissions were filed.
The Court may summarily dismiss an applicant’s judicial review application pursuant to
s 143(2) of the Court Act and/or r 13.13(a) of the Rules.
Section 143(2) of the Court Act provides that this Court may give judgment for one party against another in relation to the whole or part of any proceeding if the Court is satisfied the other party has no reasonable prospect of successfully prosecuting the proceeding. Section 143(3) of the Court Act specifies that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.
Rule 13.13(a) of the Rules provides that the Court may order that a proceeding be dismissed if the Court is satisfied that “the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim”.
Rule 13.13(a) of the Rules is not materially different to its predecessor under the (now repealed) Federal Circuit Court Rules 2001 (Cth), and the same can be said for s 143(2) in relation to the (now repealed) s 17A of the Federal Circuit Court of Australia Act 1999 (Cth): AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [19]. The latter provision was expressly introduced to lower the bar for the dismissal of applications lacking in merit and has been considered as involving a lower threshold: see Khroud v Commonwealth of Australia [2016] FCCA 1202 and May v Longley Anor [2015] FCCA 2252.
The established principles relating to summary judgment can be summarised as follows, by reference to Spencer v Commonwealth of Australia (2010) 241 CLR 118 and Przybylowski v Australian Human Rights Commission(No 2) [2018] FCA 473:
(a)the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding;
(b)the assessment of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument;
(c)despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution; and
(d)the determination of a summary dismissal application does not require a mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. A critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial is required.
The relevant principles make clear that in considering the Minister’s summary dismissal application, the Court is not required to determine whether the decision of the Tribunal is affected by jurisdictional error. Rather, the task is to consider whether the case raises a “real or genuine dispute” as to any material fact that might reasonably be resolved in the applicant’s favour: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [33], citing Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at [132] per Gordon J, Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [4] to [6] per Finkelstein J and J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581 at [6] per Pagone J.
Grounds of review
Ground 1
The first ground of review alleges that the Tribunal “failed to afford procedural fairness”. The applicant has not specified which of its procedural fairness obligations the Tribunal failed to uphold, and I find that none is apparent.
The Minister concedes that the Tribunal’s hearing invitation dated 2 November 2021 provided a non-functional hearing link. Even the Tribunal accepted it as not being a real and meaningful invitation: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at 561 per Gray, Cooper and Selway JJ. However, the Tribunal corrected that error by its decision of 29 November 2021 revoking its previous non-appearance decision and reopening the applicant’s case.
Thereafter, the applicant was provided with a further invitation to attend a hearing which complied with the requirements of s 425(1) of the Act.
The Tribunal attempted to send the applicant SMS hearing reminders to his nominated mobile phone number, which did not successfully deliver, and the applicant had not demonstrated a pattern of engagement with the Tribunal that suggested it needed to do more: Cf. AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144 at [24] to [26] per North ACJ. There was no information before the Tribunal to enliven its obligations under s 424A, and there is otherwise nothing in the material before me to indicate that the Tribunal failed to comply with any of its Part 7 obligations.
In all of the foregoing circumstances, and having regard to the principles in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [53] per Gaudron and Gummow JJ, I am of the view that this ground lacks a reasonable prospect of success, even on an impressionistic level.
Grounds 2 and 3
The second and third grounds respectively assert that the Tribunal “failed to consider the applicant’s case on its record evidence” and “erred in dismissing the applicant’s case without reviewing the delegate’s decision”.
The Minister says that, taken at their highest, these grounds cavil with the Tribunal’s exercise of discretion under s 426A(1A)(b) of the Act.
Having regard to the Act, the Tribunal’s hearing invitation dated 1 December 2021 complied with the relevant legislative requirements, namely:
(a)it was an invitation to the applicant to appear before the Tribunal: s 425(1) and s 426(1)(a);
(b)the applicant was told that he could give the Tribunal written notice to obtain oral evidence from a person or persons: s 426(1)(b);
(c)it notified the applicant of the date, time and place of the hearing: s 425A(1);
(d)the invitation was given to the applicant by one of the means specified in s 441A of the Act (namely, by email): s 425A(2)(a);
(e)it was dispatched to the last email address (and notably, the only email address) provided by the applicant in connection with the review: s 441A(5)(b);
(f)accordingly, the invitation was taken to have been received by the applicant at the end of the day on which it was transmitted (namely, on 1 December 2021): s 441C(5);
(g)it provided the applicant with a period of time that was at least the prescribed period of 14 days as specified by reg 4.35D of the Migration Regulations 1994 (Cth): s 425A(3); and
(h)the invitation contained a statement to the effect of s 426A: s 425A(4).
For the reasons given at [42] to [43] above, I am satisfied that the Tribunal provided an evident and intelligible justification for the exercise of its discretion to dismiss the application pursuant to s 426A(1A)(b) and the exercise of that discretion was not unreasonable or capricious: see SZOZO v Minister for Immigration and Citizenship [2011] FCA 944 at [22] per Reeves J. The statutory scheme expressly envisaged that the Tribunal be permitted to dismiss the application without further consideration, in circumstances where the applicant had been properly invited to a hearing under s 425(1), but failed to appear.
Equally, the Tribunal’s notification letter dated 16 December 2021 attaching the non-appearance decision complied with the legislative requirements.
As the applicant was validly notified of the non-appearance decision but did not seek reinstatement within the prescribed period, the Tribunal was required by s 426A(1E) to make the confirmation decision and had no lawful ability to do otherwise (FGB17 v Minister for Home Affairs [2019] FCA 725 at [12] and AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10]).
As the applicant was validly notified of the non-appearance decision but did not seek reinstatement within the prescribed period, the Tribunal was required by s 426A(1E) to make the confirmation decision and had no lawful ability to do otherwise: FGB17 v Minister for Home Affairs [2019] FCA 725 at [12] per Yates J and AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10] per Perram J.
In all the circumstances of this case, I am not satisfied that either of grounds 2 or 3 has a reasonable prospect of success, again even taken at an impressionistic level.
In the absence of having filed written submissions, the applicant was given the opportunity to address the Court at hearing on 18 May 2023, as to why it was that his proceedings ought not be summarily dismissed.
The applicant asked the Court whether he could explain why it was that he had not attended the Tribunal hearing. The applicant said that he had found an agent and had paid them a significant amount of money. The applicant said that the agent told him that he would find a lawyer to deal with this. The applicant said that it was only in January 2022 that he had realised that his visa had expired, and he sought to ascertain what had happened with his review. The applicant said that the email address to which correspondence was sent by the Tribunal is not his email address. In those circumstances, the applicant says he did not know about the Tribunal’s hearing, and that is why he did not attend. He also says that he was not notified of the Tribunal’s decision to dismiss the application, and I infer, also, of the confirmation decision.
I asked of the solicitor for the Minister whether these explanations had been proffered to the Registrar when he heard the original summary dismissal application, and was told that the applicant made similar submissions to the Registrar. I am satisfied that the Registrar had before him similar information that has been put before me in relation to the summary dismissal application this morning. The solicitor for the Minister says that the applicant’s reasons for not attending the Tribunal ought to have been raised with the tribunal in seeking any reinstatement application. That may be technically true although, from a practical perspective, if the applicant was unaware of the Tribunal’s dismissal, he was also not in a position to advance to the Tribunal his reasons for the non-attendance in the first place.
However, as the Minister’s solicitor also observes, the application made to the Tribunal (CB 50 to 51) includes no details for a representative at all. On its face, it appears that the application was made by the applicant, and the details given, being a mobile number and an email address, were expressed, as being those of the applicant. The email address, (being a particular Outlook email address) is the email address to which the Tribunal corresponded throughout the review process, as it was required to do.
The Minister submits that any failure of the applicant to become aware of the hearing date or any of the Tribunal’s decision, by reason of the Tribunal having emailed this email address, is the responsibility of the applicant. I agree. Further, and as the Minister’s solicitor submits, even if there were an agent involved, although there is no evidence before me to that effect, mere negligence would be insufficient to invalidate the decision of the Tribunal: SZFDE v Minister for Immigration and Citizenship (2007) CLR 232 189 and Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443.
CONCLUSION
There is no real question of fact or law which is in dispute and which if the matter were to proceed to a final hearing, might realistically be resolved in the applicant’s favour. The approach taken by the Tribunal was not only expressly permitted but, in relation to the confirmation decision, required by law in circumstances where the applicant did not seek to have the proceedings reinstated.
In all of the circumstances of this case, I am satisfied that the Minister has established that the originating application in this matter seeking judicial review of the Tribunal’s decision lacks a reasonable prospect of success and should be summarily dismissed.
In doing so on a de novo basis, I have reached the same conclusion as did the Registrar, and I would accede to the application that the proceedings be summarily dismissed pursuant to r 13.13 of the Rules. Accordingly, the application seeking to set aside the orders made by the Registrar on 10 November 2022 will be dismissed.
COSTS
Consequent of my dismissal of the review application, the solicitor for the Minister seeks an order that the applicant pay an additional $1,780, which is in addition to the order made by the Registrar on 10 November 2022, for costs of the proceedings up until that point. When asked whether or not he wished to say anything in relation to whether costs should follow the event or the amount, the applicant said he had nothing further to say.
I am satisfied that costs ought follow the event of the dismissal of the review application. I am further satisfied that the amount sought, namely, $1,780, is reasonable, having regard to the Court’s scale and the fact that for a proceeding which concludes at an interlocutory hearing the scale amount provided is in excess of $4,000. I note that the Minister complied with the Court’s order that further written submissions be filed in relation to the review application, and having regard to that and the fact that the matter has proceeded to a hearing, I am satisfied that the amount of $1,780 is reasonable in the circumstances. I will make an order to this effect also.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 18 May 2023
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