AHJ20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 298
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AHJ20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 298
File number(s): MLG 210 of 2020 Judgment of: JUDGE GOODCHILD Date of judgment: 3 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) 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
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
Gallo v Dawson (1990) 93 ALR 479
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
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
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
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
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
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of hearing: 20 April 2023 Place: Sydney Applicant: In Person Solicitor for the Respondents: Ms P Durham of Australian Government Solicitor ORDERS
MLG 210 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AHJ20
Applicant
AND: MINISTER OF IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GOODCHILD
DATE OF ORDER:
3 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 AND BACKGROUND
The applicant in these proceedings (“the applicant”) is a 36-year-old Malaysian citizen. He arrived in Australia on 6 March 2016 and lodged an application for a protection visa on 14 June 2016 (Court Book (“CB”) 61).
On 7 September 2016, a delegate of the then Minister for Immigration made a decision refusing to grant the applicant the protection visa (“the delegate’s decision”) (CB 61 to 77).
On 30 September 2016 the applicant lodged an application with the Administrative Appeals Tribunal (“the Tribunal”) for review of the delegate’s decision (CB 78 to 79). In his review application, the applicant nominated an email address for service of documents, and also provided a telephone number.
On 27 September 2017, the Tribunal sent an email to the applicant’s nominated email address inviting the applicant to attend a hearing on 14 November 2017 at 9.30am (VIC time) (CB 84 to 90). In that correspondence, the Tribunal advised the applicant that at the hearing he would be provided with the opportunity to give evidence and present arguments relating to the issues in his case.
On 6 and 13 November 2017, the Tribunal sent an SMS message to the applicant’s nominated telephone number reminding him of the time and date of the Tribunal hearing. No response to the hearing invitation was received from the applicant (CB 91 to 92).
At the Tribunal hearing on 14 November 2017, there was no appearance by or on behalf of the applicant (CB 93 to 95).
In circumstances of the applicant’s failure to attend the Tribunal hearing on 14 November 2017, 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 this nominated email address. By correspondence attached to the email, the applicant was also informed he could make an application to reinstate his review application (CB 99 to 101).
The applicant did not apply for reinstatement. As such, on 29 November 2017 the Tribunal made a decision to confirm the Non-Appearance Decision (“the Confirmation Decision”) (CB 104) which, by virtue of s 426A(1F) of the Act, meant the delegate’s decision was taken to be affirmed.
On 21 January 2020, the applicant filed in this Court his application for judicial review of the Tribunal’s decision to dismiss his review application.
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 763 days out-of-time in relation to the Non-Appearance Decision (dated 14 November 2017), and 748 days out-of-time with respect to the Confirmation Decision (dated 29 November 2017).
Accordingly, the applicant requires an extension of time pursuant to s 477(2) of the Act to pursue his judicial review proceedings in this Court.
On 20 April 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. The first respondent in these proceedings (“the first respondent”) attended the hearing represented by a legal representative.
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 his Originating Application on 21 January 2020 seeking an extension of time and provided therein the following “grounds” for why he believes an extension should be granted:
1.I was not aware of the limit for the judicial review in Court and I required extension of time to seek justice where I believe there was a lack of procedural fairness.
2.The Applicant met the key elements of Subclass 866 visa but the tribunal member did not consider and therefore committed factual and legal error.
(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 in Hunter Valley Developments Pty Ltd v Cohen[1] (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2]) 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] (1984) 3 FCR 344.
[2] (2022) 403 ALR 604 (“Tu’uta Katoa”) at [12].
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”.[3] 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.[4]
[3] MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585 (“MZABP”).
[4] 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[5]. The Court said in relation to a substantively similar provision in 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.
[5] 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 20 April 2023, the Court explained to him 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;[6]
(b)where the decision-maker ignores relevant material;[7]
(c)where the decision-maker relies on irrelevant material;[8]
(d)where the decision-maker fails to follow mandatory procedures;[9]
(e)where the decision-maker shows actual or apprehended bias;[10] and
(f)where the decision is illogical, irrational or unreasonable.[11]
[6] Craig v State of South Australia (1995) 184 CLR 163 at 198.
[7] Ibid.
[8] Ibid.
[9] SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208].
[10] SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2].
[11] 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 he 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.[12]
[12] 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 21 January 2020;
·the applicant’s Affidavit filed in support of his Originating Application dated 21 January 2020;
·the first respondent’s Response filed 20 February 2020;
·the Court Book filed by the first respondent on 24 February 2022;
·the first respondent’s written Outline of Submissions filed 4 April 2023;
·the first respondent’s List of Authorities filed 4 April 2023; and
·the first respondent’s Affidavit of Service filed 14 April 2023.
The Court confirmed with the applicant that he had the Court Book and the written Outline of Submissions of the first respondent which had been served on him on 19 July 2022 and 5 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 he wished to say in respect of his 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.[13] 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.[14]
[13] Gallo v Dawson (1990) 93 ALR 479 at [2] per McHugh J.
[14] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
The delays in this matter are 763 days in relation to the Non-Appearance Decision and 748 days in relation to the Confirmation Decision.
The delay here is significant 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 4 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.[15]
[15] 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.
In his Affidavit filed in support of his judicial review application, the applicant did not provide any explanation for the delay in commencing the proceedings in this Court. Annexed to that Affidavit was a copy of the Confirmation Decision made by the Tribunal.
One ground of the applicant’s extension of time application was that he was “not aware” of the time limit to seek judicial review. I accept the first respondent’s submission that a self-represented litigant’s ignorance of the time limit for an appeal is not a satisfactory explanation for delay.[16]
[16] SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8] to [9].
At the hearing before me on 20 April 2023, I also gave the applicant an opportunity to provide further information with respect to delay. The applicant stated that there was nothing he wished to say.
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 him.
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” or merit.
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”[17]. 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[18], 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.[19]
[17] CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at 452 [19].
[18] MZABPv Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at 597 [58].
[19] Federal Court of Australia Act1976 (Cth), s 24(1)(a).
The application for judicial review filed by the applicant on 21 January 2020 includes the following grounds of review:
1.I came to Australia as a visitor visa holder and made an application for further visa and made and application for protection visa. Protection visa application was refused then I lodged an application for review of my visa application with The Tribunal. I was received an invitation to attend a hearing with The Tribunal about my application for review of a decision to refuse to grant protection visa. I did not appear to give evidence and present documents at the time and date of the scheduled hearing with The Tribunal and then The Tribunal confirms the decision to dismiss the application and I like to make an appeal application to the Federal Circuit Court to seek justice on my matter.
3.I was advised by Tribunal to apply for reinstatement of the application within the 14 days period of receiving the dismissal statement. The reason I did not appear at the hearing with The Tribunal and did not apply for reinstatement of the application within the 14 days period because at that time I was not aware about the hearing with the Tribunal and I required judicial review in Court to seek justice where I believe there was a lack of procedural fairness.
4.I have lost my mobile phone and when I bought a new one, I got problem to opened my email but once I figure it out, it’s been late for me to attend the hearing and my application has been dismissed by The Tribunal.
2.This is clear unfair treatment by The Tribunal to myself. The Tribunal has refusal letter from Minister for Immigration and can clearly see the sensitivity of this matter and returning to my home country could have serious consequences for me.
3.I would like to request Federal Circuit Court to accept my application and give me change to present fresh evidences to support my claim in my visa application so that I could get fair trial in this matter.
4.I would to request Federal Circuit Court to accept my application and have a fresh look on this matter and set a new orders and replace orders made by The Tribunal.
5.I would like to request to Federal Circuit Court to set aside old orders made by The Tribunal and decide on this matter by having another look at this matter and I am sure that Federal Circuit Court would accept my claim and will set new orders and replace old orders.
(As per original, including misnumbering)
The applicant’s application contains no particularisation of the grounds of the judicial review. Although orders were made for the applicant to file and serve any amended application and any affidavit containing additional evidence to be relied upon, he did not do so. An order was also made for the applicant to file and serve written submissions, however none were filed.
On a review of the applicant’s application and affidavit evidence, there is nothing contained in either document which gives rise to matters of jurisdictional error.
Despite this, it is important to ensure that the applicant’s judicial review application is substantially considered by this Court. At the hearing on 20 April 2023, I gave the applicant an opportunity to elaborate on the substantive “grounds of review” identified in his judicial review application, and to outline any other concerns that he might have in relation to the Tribunal’s decisions.
The applicant told me it was unfair for the Tribunal to go ahead without him being in attendance at the hearing before the Tribunal. He says the Tribunal should not have gone ahead because he did not know at the time about the hearing. He says he only found out about the hearing later because he lost his phone and could not access his email.
Nothing that the applicant said to me was relevant in advancing the prospects of success of this case.
While the applicant’s oral submissions did not otherwise raise any allegation of jurisdictional error or any issue of the sort that this Court can address, in its duty to assist self-represented litigants, the Court will consider for itself whether any arguable case of error arises in the Tribunal’s decision.
Having regard to the grounds of review contained in the applicant’s application, and having regard to the nature of the decisions under review, I propose to consider the following issues:
(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 decision
The Non-Appearance Decision
The Non-Appearance Decision dated 14 November 2017 provides (CB 99):
1.The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 14 November 2017 / 9:30am. 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 Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
2.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No reason for the non-appearance has been given.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
(Emphasis in original)
The Confirmation Decision
The Confirmation Decision dated 29 November 2017 provides (CB 105):
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 September to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 14 November 2017 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 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 November 2017 which resulted in the Tribunal dismissing the applicant’s application for review pursuant to s 426A(1A)(b) of the Act.
The Tribunal was required to invite the applicant to attend a hearing before it pursuant to s 425 of the Act. That section provides:
425 Tribunal must invite applicant to appear
(1)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.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
On 27 September 2017, an email was sent from the Tribunal to the email address provided by the applicant in his review application. Attached to that email was an invitation from the Tribunal to the applicant to attend a hearing at 9.30am (VIC time) on 14 November 2017, at a specified address which was the Tribunal’s Melbourne Registry (CB 84 to 90).
Notably, in the correspondence sent from the Tribunal notifying the applicant of the hearing, the following paragraphs are included (CB 86):
If you are not able to attend the hearing, you need to advise us as soon as possible. Any request to postpone a hearing must be made in writing as early as possible, including the reasons for making the request. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. 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 attend the scheduled hearing, 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.
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:
(f)was addressed to the applicant (CB 84 to 85);
(g)clearly indicated the date, time and means by which the applicant could attend the Tribunal hearing (CB 85);
(h)was sent to the applicant’s email address provided by him in his review application (CB 84 to 85), noting that email notification is a method approved by s 441A(5)(b) of the Act;
(i)was provided to the applicant 48 days prior to the scheduled hearing, being a time-frame exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth); and
(j)contained information describing the effect of s 426A of the Act and the particular consequences of a failure to attend the hearing (CB 86).
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 27 September 2017), regardless of whether the document was actually received.[20]
[20] 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 arguable case of error arises in this regard.
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[21] (citing ACN22[22]), 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.
[21] BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176 (“BHG22”).
[22] 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.[23] 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.
[23] 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 November 2017. He does not dispute this.
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 426A(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 his 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)no further material had been provided to the Tribunal by the applicant in support of his review application;
(c)an SMS hearing reminder was sent to the applicant’s nominated mobile number on 6 and 13 November 2017; and
(d)the applicant did not appear at the Tribunal hearing at the scheduled time of 9.30am (VIC time) on 14 November 2017 (CB 93 to 95).
The Court further notes that, as was explained in BHG22 (citing Sun[24] and Mohammed[25]), 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. 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.
[24] Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901.
[25]Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268.
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 arguable case of jurisdictional error arises in this regard.
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 applicant was notified (by email) of the Non-Appearance Decision on 14 November 2017 (CB 96).
The Court notes that, when the applicant was advised that his application had been dismissed, he was also advised that he could seek reinstatement within 14 days of receiving notice of the Non-Appearance Decision (that is, by 28 November 2017). Relevantly, the letter addressed to the applicant provided as follows (CB 97):
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 November 2017. 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.
This letter complied with the requirements of s 426B(6) of the Act.
The applicant did not seek reinstatement 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 30 November 2017 (CB 102 to 105).
No arguable case of error arises in relation to the Tribunal’s Confirmation Decision.
Conclusion regarding merits of the substantive application
The applicant conceded that he 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.[26] The Tribunal provided an evident and intelligible justification for the Non-Appearance Decision, noting that the applicant had been properly invited to the hearing and two SMS reminders were sent to the applicant.
[26] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [97]; EBS17vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 at [22].
On 14 November 2017, 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 his application to the Tribunal had been dismissed due to his non-appearance. This notice also contained information as to how the applicant could have his 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 lengthy delay in filing, the lack of both a satisfactory explanation for that delay and an arguable case of jurisdictional error on the part of the Tribunal, are such that it is not in the interests of the administration of justice for the Court to grant an extension of time in this matter.
The application for an extension of time is, accordingly, refused.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 3 May 2023
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