AHL22 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1350
•10 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AHL22 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1350
File number: MLG 141 of 2022 Judgment of: JUDGE GOSTENCNIK Date of judgment: 10 December 2024 Catchwords: MIGRATION – protection (subclass 866) visa – extension of time – where application to the (then) Administrative Appeals Tribunal to review delegate’s decision was made outside the time prescribed – where Tribunal found it had no jurisdiction – where proposed review grounds do not engage with the decision made by the Tribunal – whether the inclusion of a defunct email address in the delegate’s notification of decision rendered the notification defective – where judicial review application made 163 days out of time – where there is no acceptable explanation for delay – where there is no arguable case of jurisdictional error – application to extend the 35-day period is dismissed Legislation: Migration Act 1958 (Cth) pts 7, 5, div 4, ss 36(2)(a), 36(2)(aa), 66, 66(2), 66(2)(d)(iv), 412(1)(b), 412(4), 422B, 422B(1), 477(1), 477(2), 477(2)(b), 477A(2), 477A(2)(b), 494B(5), 494C(5), 500
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) item 2, div 1, pt 2, sch 2
Migration Regulations 1994 (Cth) reg 4.31(2)
Cases cited: BMY18 v Minister for Home Affairs [2019] FCAFC 189
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
BUH23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 995
CJG22 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1087
Daksh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 612
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; 270 FCR 492
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Mentink v Minister for Home Affairs [2013] FCAFC 113
Parker v The Queen [2002] FCAFC 133
Porter v Ghasemi [2021] FCAFC 144; (2021) 286 FCR 556
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 6 November 2024 Date of hearing: 20 November 2024 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Ms T Weir Solicitors for the First Respondent: HWL Ebsworth Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 141 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AHL22
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
10 DECEMBER 2024
THE COURT ORDERS THAT:
1.The application for an order extending the 35-day period within which an application for judicial review of a migration decision of the (then) Administrative Appeals Tribunal may be made is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $3,900.00.
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 Gostencnik
BACKGROUND
On 8 October 2020, the applicant, a Malaysian citizen, applied for a Protection (Class XA) (Subclass 866) visa: Court Book (CB) 1-CB18. The applicant claimed that as a teenager he was forced to join a gangster group led by his uncle in Malaysia: CB12. The applicant claimed fearing harm from the group and being threatened with beatings if he did not join: CB12-CB13. He claimed his parents reported the group to police, that his uncle and the gang agreed not to beat him anymore, but he did not trust them to keep their promise: CB12-CB13. The applicant’s parents advised him to move to Australia for protection: CB13. On 27 April 2021, a delegate of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused the visa application: CB34-CB44. The delegate concluded that the applicant is not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act): CB43-CB44.
The delegate’s decision the subject of the review application was a Part 7-reviewable decision. The applicant was notified of the delegate’s decision by email transmitted on 27 April 2021: CB34-CB35, a method permitted by s 494B(5) of the Act. By operation of s 494C(5), the applicant is taken to have received the notification at the end of 27 April 2021 – the day on which it was transmitted.
The applicant subsequently applied to the (then) Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision: CB45-CB51. The Tribunal received the review application on 26 May 2021, acknowledging its receipt on 27 May 2021: CB53-CB54. Section 412(1)(b) of the Act (as then in force), relevantly provided that an application for a review of a Part 7-reviewable decision must be given to the Tribunal within the period prescribed, being a period ending no later than 28 days after the notification of the decision. Section 412(4) (as then in force) permitted regulations made for the purposes of s 412(1)(b) to specify different periods in relation to different classes of Part 7-reviewable decisions. Regulation 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations) (as then in force), relevantly provided the Tribunal must be given an application for review within 28 days, commencing on the day the applicant is notified of a Part 7-reviewable decision. The last day for lodging the application for review was 24 May 2021.
On 3 June 2021, a staff member of the Tribunal notified the applicant by email correspondence that his application appeared not to be a valid application as it was not lodged within the time prescribed: CB57. The correspondence also advised the applicant that if he wished to make any comments on whether a valid application has been made, he should do so, in writing, by 17 June 2021: CB57. The applicant did not respond: CB65 at [4].
The applicant was notified of the Tribunal’s decision on 30 June 2021 and provided with a copy of its Statement of Decision and Reasons (Decision) dated 29 June 2021: CB63-CB66, and an ‘Information about Decisions – MR Division’ fact-sheet: CB63B.
TRIBUNAL’S DECISION
The Tribunal determined that it did not have jurisdiction to review the matter because the review application was not received by the Tribunal until 26 May 2021, and so was not made in accordance with the relevant legislation: Decision at [6]-[7]. The Tribunal reasoned that:
(a)in the applicant’s circumstances, an application for review of the decision had to be made within 28 days of the day the applicant was notified of the decision: Decision at [2];
(b)the applicant was notified of the delegate’s decision by email sent on 27 April 2021: Decision at [3], and is taken to be notified on that day: Decision at [5];
(c)the prescribed period to apply for review therefore ended on 24 May 2021: Decision at [5]; and
(d)as the application for review was not received by the Tribunal until 26 May 2021, the Tribunal did not have jurisdiction to deal with the application: Decision at [6].
By application lodged on 14 January 2022 in the Court, the applicant applies for an order to extend the time within which he can make an application for judicial review of the Tribunal’s decision.
CONSIDERATION
An application to the Court for a review of a migration decision must be made within 35 days of the date of the decision: s 477(1) of the Act. The Tribunal’s decision was made on 29 June 2021 and the 35-day period within which an application to the Court must be made ended on 3 August 2021. The applicant therefore made his application 164 days after the time prescribed lapsed. Section 477(2) of the Act allows the Court, by order, to extend the 35-day period as the Court considers appropriate if the Court considers that it is necessary in the interests of the administration of justice to do so.
The applicant’s grounds in support of his application for an extension of time specify the following:
1.I DID NOT HAVE ENOUGH MONEY FOR THE COURT APPEAL PROCESS AT THE TIME.
2.I ALSO CAN NOT PAY LEGAL SERVICE FOR APPEAL TO THIS COURT AT THAT MOMENT, SO TO MAKE SURE I IN LAWFULL (sic) I GET VOLUNTEERED IN UNION OF WORKERS TO HELP ME IN THIS APPEAL PROCESS.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 Kiefel CJ, Gageler, Keane and Gleeson JJ explained the exercise of the Court's discretion under s 477(2) of the Act, by reference to the corresponding provision for applications made to the Federal Court of Australia in s 477A(2). In short compass, the focus of s 477A(2)(b) (and so also s 477(2)(b)) is not on the interests of the applicant, but the broader interests of the administration of justice. This allows the Court to consider “a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application”: Tu'uta Katoa at [12]. Their Honours noted that the level of satisfaction that must be reached is not low because the Court “must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice”: at [12]. In this regard, their Honours noted that it is appropriate to consider the well-established principles guiding decisions whether to extend time in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; Tu’uta Katoa at [13].
The non-exhaustive principles set out in Hunter Valley to which reference in Tu'uta Katoa is made were cited with approval in Parker v The Queen [2002] FCAFC 133 at [6] as follows:
1.applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
2.action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3.any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4.however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5.the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
See also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [2], [33]-[36]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; Porter v Ghasemi [2021] FCAFC 144; (2021) 286 FCR 556 at 566, [40].
In determining what is necessary in the interests of the administration of justice for the purposes of s 477(2)(b) of the Act, it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level” 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. But there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, where a delay in making an application is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". And in other cases, the proposed ground of review may be hopeless, but it may be necessary to examine the proposed application in some detail to reach that conclusion. In cases of that kind, a proper exercise of the power conferred by s 477(2) will not require the Court to confine its consideration of the merits to an assessment of that which is "reasonably arguable" or some similar standard. The broad power in s 477(2) does not prevent the Court from undertaking a detailed examination of the merits of the application: see discussion in Tu'uta Katoa at [17]-[18].
As already noted, the delay in making an application to the Court is 164 days. The extent of the delay is therefore significant. The explanation for the delay given pertains to the applicant’s financial capacity to bring the application. The applicant says he did not have enough money to make the application or to pay for legal services to assist him in making the application. He says he eventually obtained assistance from the National Union of Workers to make this application.
The applicant did not provide any evidence about how his financial circumstances affected his capacity to make the application to the Court in a timelier manner. The applicant applied for an exemption from paying the filing fee associated with the judicial review application, which was subsequently approved, but he has not provided any explanation why such application could also not have been made earlier in time. There is also no evidence about whether the applicant took any steps to obtain assistance other than through a paid lawyer. While I am not unsympathetic to the challenges an unrepresented prospective litigant might face in bringing a judicial review application before the Court, without more, the applicant’s financial constraints or difficulties will not provide a satisfactory explanation for the delay: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]-[26] and the authorities cited therein. Neither will a lack of, or inability to obtain legal advice, alone, be a sufficient excuse for a failure to lodge an application within the time prescribed nor provide an acceptable explanation for the delay: Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17] and the authorities cited therein.
The applicant was on notice of his right to seek review and the relevant time for doing so by reason of the Tribunal's ‘Information about Decisions – MR Division’ fact-sheet, which accompanied the notification of the Tribunal's decision: CB63B. Even considering that the information is in English, a diligent litigant would have taken prompt action to seek assistance with a translation. The need for the information to be translated does not explain the lengthy period of the delay. Given the matters discussed above, both the extent of the delay and the absence of any acceptable explanation for the delay weigh against a conclusion that it is necessary in the interests of the administration of justice to make an order extending time.
Although the first respondent accepted he would suffer no relevant prejudice if the extension was granted, the mere absence of prejudice is not a sufficient basis to warrant the grant of an extension of time: SZTRY at [6]; Hunter Valley at 349.
Turning then to the merits of the proposed review grounds, the applicant’s proposed grounds for review are:
1.THE TRIBUNAL FILED (sic) TO CONSIDER MANY VITAL INTEGER OF MY CASE
2.THE TRIBUNAL DEPRIVED ME OF PROCEDURE FAIRNESS
3.THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FORM (sic) SOME OTHER CASE;
4.THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIONS ABOUT THE TYPES OF HARM RELAVENT (sic) IN MY CASE
The first respondent contends that the proposed grounds have no reasonable prospect of success and are therefore not sufficiently meritorious to justify the grant of an extension of time, even at a relatively impressionistic level.
It is to be remembered that the Tribunal did not undertake a merits review. It did not determine the merits of the applicant’s substantive visa claims arising from a review of the delegate’s decision. The Tribunal determined it had no jurisdiction to review the delegate’s decision because the application to the Tribunal was made outside of the time prescribed. And unlike the Court here, the Tribunal did not have power to extend the time frame within which to make a merits review application nor to accept a late application. The applicant’s proposed grounds 1, 3 and 4 do not engage with the decision the Tribunal made. They appear to make allegations about the errors made in connection with a decision the Tribunal did not make. And no arguable case of jurisdictional error is thereby disclosed.
To the extent that ground 1 and perhaps ground 4 might be said to contend that the Tribunal failed to do the things alleged because it erroneously concluded that the review application was received by the Tribunal outside of the time prescribed and thus erroneously concluded that it did not have jurisdiction to determine the review application, there is no particularised basis why that might be so.
The Tribunal’s conclusion that it did not have jurisdiction in the matters appears correct. An application for review of a delegate’s decision must be given to the Tribunal within the period prescribed. As the applicant was not in detention and the notification of the delegate’s decision was transmitted by email on 27 April 2021, the applicable time frame was 28 days beginning at the end of 27 April 2021 and concluding at the end of 24 May 2021. The Tribunal received the review application on 26 May 2021. Notification of the delegate’s decision was given by the method described in s 494B(5) of the Act – it was sent to the last email address provided to the Minister for the purposes of receiving documents – and the applicant is taken to have received the notification at the end of the day on which it was transmitted by operation of s 494C(5). As the applicant did not file an application within the prescribed period and that the Tribunal does not have power to extend time or to waive the requirement to make the application within the time prescribed, the Tribunal’s decision that it did not have jurisdiction was correct.
As to ground 2, the ground is not particularised, and the applicant was not able to explain how he says the Tribunal failed to accord him procedural fairness. On the materials, the Tribunal complied with its procedural fairness obligations.
The delegate’s decision the applicant sought to have reviewed by the Tribunal was a Part-7 reviewable decision. Section 422B(1) of the Act (as then in force) provided that Pt 7 Div 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the conduct of a review. In the instant case, the Tribunal found it did not have jurisdiction to review the delegate’s decision. No review was undertaken, and Pt 7 Div 4, including s 422B, did not come into operation. And so the requirements of natural justice are then not excluded by s 422B : see SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35].
The Tribunal was required to afford the applicant procedural fairness in its consideration of whether it had jurisdiction to deal with the review application. A finding the Tribunal did not have jurisdiction to deal with the review application was self-evidently a finding adverse to the applicant’s interests. The applicant was therefore entitled to be given a reasonable opportunity to deal with the question whether the Tribunal had jurisdiction.
The applicant was notified on 3 June 2021 by email correspondence from the Tribunal that his application appeared not to be valid as it was not lodged within the time prescribed. The applicant was invited to make any comments on whether a valid application had been made, in writing, by 17 June 2021. The opportunity to comment on the question of jurisdiction was given before the Tribunal made its decision and it remained open for two weeks. The opportunity given appears reasonable in the circumstance, and any suggestion the Tribunal did not afford the applicant procedural fairness has no real prospect of succeeding.
As a model litigant, the first respondent raises an issue about the notification of the delegate’s decision. The notification provided a defunct email address as an email address by which the applicant may lodge an application for review in the Tribunal, as well as several other methods. The issue identified is whether the notification complied with s 66(2)(d)(iv) of the Act. Section 66 (as then in force) required the Minister, when refusing to grant a visa, to notify the applicant of the decision in the prescribed way and relevantly required notification to an applicant who had a right to have the decision reviewed under Part 5 or 7 or section 500 to state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made; and
. . .
A contention that notification of a delegate’s decision did not comply with s 66(2)(d)(iv) of the Act because of a defunct or inoperative email address, has been considered and rejected in three recent judgments of this Court: see Daksh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 612; BUH23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 995; CJG22 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1087. In each case, as here, the notification contained a defunct email address, but it also provided a link through which the applicant could apply online; other functional email addresses; facsimile numbers and the physical addresses of State registries of the Tribunal through or at which an application could be lodged. The judgments appear plainly correct, and no cogent reason is advanced why a different result should here ensue. Accordingly, I do not consider any arguable case of jurisdictional error is raised.
For completeness, the notification of the delegate’s decision in the instant case appears to comply with s 66(2) of the Act and does not appear to be affected by the error identified in BMY18 v Minister for Home Affairs [2019] FCAFC 189. The notification appears to state that the delegate’s decision could be reviewed, that the applicant can apply for a review, the time within which the application could be made, and where the application could be made with sufficient clarity: DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64; 270 FCR 492.
The applicant’s review grounds do not disclose any arguable case of jurisdictional error, and no other basis on which jurisdictional error might reasonably be argued has been identified. Consequently, the absence of any merit in the substantive judicial review application is a matter that weighs strongly against a conclusion that it is necessary in the interests of the administration of justice to extend time.
The extent and length of the delay and the absence of merit in the substantive application all point to a conclusion that it is not necessary in the interests of the administration of justice to order that the 35-day period be extended. In the circumstances I am not persuaded that the interests of the administration of justice necessitate an order that the 35-day period be extended. Accordingly, the application for an extension of time will be dismissed.
The first respondent sought costs in the sum of $3,900.00 in the event the applicant was unsuccessful. As the proceeding will be dismissed at an interlocutory stage, the amount sought is less than the amount for which provision is made in item 2 of Div 1, Pt 2, Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The applicant did not raise any cogent reason why a costs order should not be made or why an order for costs in a sum less than that which the first respondent seeks should be made. I consider the amount sought is reasonable and appropriate in the circumstances. An order for costs in the sum of $3,900.00 will be made in favour of the first respondent.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 10 December 2024
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