Aip21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1077
•20 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AIP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1077
File number: PEG 24 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 20 May 2021 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – extension of time application – over 1000 day delay – inadequate explanation – no arguable case of jurisdictional error – extension of time refused. Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.05(2)(c)
Migration Act 1958 (Cth), ss 425, 425A, 426A, 426B, 477, 477A
Cases cited: BWI18 v Minister for Home Affairs [2020] FCA 290
Craig v State of South Australia (1995) 184 CLR 163
DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
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 Border Protection v SZVFW [2018] HCA 30
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZASP v Minister for Immigration & Citizenship [2007] FCA 771
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 69 Date of hearing: 14 May 2021 Place: Perth Counsel for the Applicant: In person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 24 of 2021 BETWEEN: AIP21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
20 MAY 2021
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL:
The applicant is a citizen of Malaysia. He arrived in Australia on a visitor visa in December 2016 (Court Book (“CB”) 21).
On 9 May 2017, the applicant applied for a Protection (subclass 866) visa (the “visa”)
(CB 1-38). The applicant claimed that he was “a gangster”, that he had been “beaten by unknown enemies twice in one year” and that he could not return to Malaysia for this reason.
On 14 August 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 39-49). The delegate was not satisfied that the applicant met the relevant refugee and complementary protection criterion.
On 30 August 2017, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (Affidavit of Ashley David Burgess affirmed 6 May 2021).
The applicant was invited to attend a hearing before the Tribunal on 12 January 2018. The applicant did not attend that hearing and the Tribunal dismissed the application for
non-appearance pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (the “Act”) (the “Non-Appearance Decision”) (CB 52). The applicant was notified of that decision (and advised of his right to apply for reinstatement) by letter sent that same day (CB 51).
The applicant did not apply for reinstatement.
On 31 January 2018, the Tribunal confirmed the non-appearance decision made on 12 January 2018 (the “Confirmation Decision”) (CB 53-55). By virtue of s 426A(1F) of the Act, the delegate’s decision was taken to be affirmed.
On 3 March 2018, the applicant again applied to the Tribunal. He sought review of the decision dated 31 January 2018 (CB 56-57).
On 13 March 2018, the Tribunal determined that it did not have jurisdiction (the “Jurisdiction Decision”) (CB 60-61).
On 9 February 2021, the applicant applied to this Court for judicial review of the Tribunal’s decision dated 31 January 2018. The applicant filed his application well outside of the 35 day time limit specified in s 477 of the Act. Accordingly, the applicant requires an extension of time to pursue these proceedings.
CONSIDERATION – EXTENSION OF TIME APPLICATION
As noted, the applicant requires an extension of time within which to pursue these proceedings.
Pursuant to s 477(2) of the Act:
(a)the applicant must make an application for an extension of time in writing explaining why the extension should be granted; and
(b)the Court may extend the time in which to file the application if the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant requested an extension of time in writing and provided grounds explaining why that extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
Turning 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. Noting that the applicant was unrepresented, the Court explained to him that the matters it may consider in this regard are not limited. However, the most common factors considered by the Court include:
(a)the length of delay and prejudice;
(b)whether the explanation for the delay is adequate; and
(c)whether the proposed substantive application for judicial review has merit.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344)
The materials before the Court include the judicial review application filed 9 February 2021, correspondence confirming service of the Court Book (marked as Exhibit 1), a Court Book numbering 61 pages (marked as Exhibit 2), an affidavit of Ashley David Burgess affirmed 6 May 2021 and a written outline of submissions filed by the Minister on 30 April 2021.
At the hearing, the applicant was assisted by a Malaysian interpreter. The applicant confirmed to the Court that he had received a copy of the Court Book, the Minister’s written submissions and Mr Burgess’s affidavit prior to the hearing. The interpreter also translated the written submissions and the affidavit of Mr Burgess to the applicant prior to the hearing. The Court thanks the interpreter for her considerable assistance in this regard.
The Court invited the applicant to address each of the factors outlined at [14] above (and highlight anything else he considered relevant to his application for an extension of time). The applicant’s responses are discussed in the consideration that follows. The Minister’s submissions are also discussed below.
The Court notes that the applicant’s affidavit (which accompanied his substantive application) does not explain the delay or why it was in the interests of the administration of justice for an extension of time to be granted. While the applicant is required to do so pursuant to r 44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth), the Court can dispense with compliance of this requirement if deemed appropriate. The Court does so here.
It is not entirely clear which of the three Tribunal decisions the applicant is appealing. In his application to this Court, the applicant claims that he seeks review of the Tribunal’s decision “dated 31 January 2018” – ie, the Confirmation Decision. The applicant’s affidavit, however, refers to the Jurisdiction decision. When asked by the Court which of the Tribunal’s decision he wanted to address, the applicant explained that he was quite confused.
It appears, in effect, that the applicant is concerned about the Tribunal’s approach “generally”. Notwithstanding that the applicant has arguably only sought review of the Confirmation Decision, the Court will address each of the Tribunal’s decisions for the purposes of determining whether an extension of time should be granted.
Delay and Prejudice
The statutory time period within which the applicant can seek judicial review in this Court is 35 days from the date of the decision. Here:
(a)the delay between the Non-Appearance Decision and the application being filed in this Court is 1089 days;
(b)the delay between the Confirmation Decision and the application being filed in this Court is 1070 days; and
(c)the delay between the Jurisdiction Decision and the application being filed in this Court is 1029 days.
On any view, the delay in this case is just under three years. A delay of this length is significant and weighs against an extension of time unless a compelling explanation for that delay is provided. This is addressed further below.
The Court accepts that there is a public interest in the finality of litigation. However, there is an absence of any substantive prejudice to the Minister. The absence of prejudice has some weight in favour of an extension being granted.
Explanation
The grounds the applicant provides in support of his application for an extension of time provide as follows (without alteration):
1. The applicant had a financial problem due to previous status as illegal worked that lead to the delay of application.
2. The applicant does not know how to seek help as the applicant stayed outside the metro area and does not speak English.
3. The applicant does not have knowledge of information technology which lead to the delay of application.
Unfortunately, the applicant provided no evidence in support of any of the matters raised above. For example, there is no evidence before the Court that relates to financial capacity which arguably goes to the issue of whether the applicant had difficulty paying Court fees.
The applicant has also provided no explanation as to how any of the matters outlined above prevented him from filing the application. For example, the applicant has not explained how a “lack of knowledge in information technology” led to the delay.
The information before the Court also tends to contradict what the applicant has stated. For example, in his visa application the applicant indicated that he could speak, read and write in English (CB 16).
Before this Court, the applicant stated that he “did not file his application in this Court”. Rather, “a friend did so on his behalf” and he “was unaware that there had been a delay in filing the application”.
The Court notes that the judicial review application and the applicant’s affidavit were signed by the applicant. They were dated 2 February 2021. Accordingly, even if the applicant had given the application to “a friend to file”, the applicant himself did not take any steps prior to 2 February 2021 to actually file the application. This means the applicant waited well over 1000 days before attempting to file anything in this Court.
Notwithstanding these concerns, the Court accepts that this applicant, like many who appear before this Court, had financial difficulties, was unsure of how to lodge an application because of a lack of basis English language skills and could not submit the application online because he did not know how to navigate the Court’s filing process.
Even accepting these concerns, however, the Court does not consider that they adequately explain a delay of almost three years. The frustrations highlighted by the applicant (financial difficulties and language barriers) are difficulties which are shared by many who appear before this Court. Most, however, file their application and documents well within the time periods prescribed.
While the Court accepts the applicant’s explanations for the delay, it does not consider those explanations to be satisfactory. This weighs against granting an extension of time.
Merits
Turning now to the most critical factor for consideration: the merits.
When determining whether a proposed application has merit, the Court must do so at a necessarily impressionistic level: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. The applicant need only point to 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: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”).
Equally, however, the Court should not grant an extension to pursue an application which has no arguable prospect of success. To do so would be futile and would not be in the interests of the administration of justice.
The Tribunal’s Decisions
In order to determine whether the substantive application has merit, it is useful to refer to the Tribunal’s decisions.
The Non-Appearance Decision dated 12 January 2018 provides:
1. The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 11 January 2018 at 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 s.441A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant was 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.
The Confirmation Decision dated 31 January 2018 provides:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 August 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2. On 12 January 2018, 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.4268(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 the 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.
5. The Tribunal confirms the decision to dismiss the application
The Jurisdiction Decision dated 13 March 2018 provides:
1. This is an application for review of a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant is a citizen of Malaysia. He entered Australia on an Electronic Travel Authority visa on 17 December 2016 and applied for the protection visa on 9 May 2017. On 14 August 2017 the delegate refused to grant the applicant a protection visa and the applicant lodged a review of that decision with the Tribunal on 3 March 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
3. An application for review of the same delegate’s decision was previously made to the Tribunal on 30 August 2017 in case 1719948. The matter was listed for a hearing on 11 January 2018 and the applicant did not appear. The Tribunal initially dismissed that application on 12 January 2018. The applicant was notified of the initial dismissal and was advised that he could apply for the application to be reinstated. On 31 January 2018, the Tribunal confirmed that dismissal and noted that no application for reinstatement had been received by the Tribunal.
4. The Tribunal notes that in the present application, the application for review form nominates 31 January 2018 as the date of the decision for which the applicant seeks a review. It would appear that the applicant is seeking to appeal against the Tribunal decision. If that is the case, the proper venue for such an appeal is the Federal Circuit Court of Australia, not by way of a repeat application to the Tribunal.
5. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.
6. As the delegate’s decision has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.
7. The Tribunal does not have jurisdiction in this matter.
Proposed Judicial Review Application
In the proposed judicial review application filed 9 February 2021, the applicant provides four proposed “grounds of review” as follows:
1. The tribunal committed jurisdictional error by taking into irrelevant considerations.
2. The tribunal failed to properly consider all of my claims.
3. The tribunal does not consider that the consequences would be face by the applicants can cause serious harm.
4. The tribunal does not consider that the applicants can get a psychological harm if return back to Malaysia.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8].
To assist the applicant, the Court explained to him that the only issue before the Court was whether there was an arguable case that the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they 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: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: 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 that this Court cannot review the merits of the Tribunal’s decision when assessing whether there is an arguable case that the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that he “did not know that he had to apply to this Court to review the Confirmation Decision” which is “why he applied to the Tribunal again”.
The Court is sympathetic to the concerns raised. However, the applicant’s oral submissions do not address the issue of whether there is an arguable case of jurisdictional error here.
Proposed Ground 1
The applicant argues in ground 1 that the Tribunal took into account irrelevant considerations. The applicant has not identified what those “irrelevant considerations” are.
There is nothing in any of the Tribunal’s decisions to suggest that the Tribunal considered anything it was not required to consider. Here:
(a)the Tribunal considered whether the applicant had been properly invited to the hearing and confirmed that he had not attended on the date and time required. Both of these matters were relevant to the Tribunal when making the Non-Appearance Decision;
(b)the Tribunal confirmed that the applicant had been notified of the Non-Appearance Decision and identified that the applicant had not applied for reinstatement when making the Confirmation Decision. These were entirely relevant considerations; and
(c)the Tribunal noted that the applicant had previously applied for review of the same delegate’s decision and referenced case law which confirmed that the Tribunal did not have jurisdiction in those circumstances. Again, these matters were entirely relevant.
Proposed ground 1 has no merit.
Proposed Grounds 2-4
Proposed grounds 2-4 all argue that the Tribunal failed to consider the applicant’s substantive claims for protection (or matters related to those claims).
The Court notes that “psychological harm” (as referred to in proposed ground 4) was not a matter ever raised by the applicant in the course of his visa application. Hence, any failure to consider this issue is entirely explained by the fact that no such claim was ever made. Nor did it arise implicitly from the (rather limited) information the applicant had provided. Further, the Tribunal was also not required to assess these matters.
The Tribunal (on the first occasion) dismissed the application for non-appearance pursuant to s 426A(1A)(b) of the Act. This provision allows the Tribunal to dismiss the application without any further consideration of the application or information (including the applicant’s claims). Hence, the Tribunal was empowered not to consider the claims.
In its the Confirmation Decision, the Tribunal was also not required to consider the applicant’s claims proper. By virtue of s 426A(1E) of the Act, the Tribunal was required to confirm the Non-Appearance Decision. It was entirely unnecessary to consider the claims raised by the applicant.
Finally, the Tribunal had no power to consider the applicant’s claims when making the Jurisdiction Decision.
The Tribunal’s failure to consider the applicant’s claims substantively does not, in the circumstances of this case, amount to jurisdictional error.
Proposed grounds 2-4 of the judicial review application have no merit.
Otherwise
In its duty to the self-represented litigant, the Court has considered whether any arguable case of jurisdictional error otherwise arises on the materials: MZAIB.
In relation to the Non-Appearance Decision, it is noted that in order for the discretion under s 426A(1A)(b) of the Act to arise, the applicant must, first, be validly invited to attend the hearing and, second, fail to attend that hearing: the Act, s 426A(1).
The Tribunal sent the applicant an invitation to attend the hearing on 13 December 2017. That invitation outlined the date, time and place of the Tribunal hearing. It was sent to the applicant’s nominated email address. It was provided more than 14 days prior to the Tribunal hearing. It also explained that, if the applicant failed to attend the hearing, the Tribunal might make a decision on the review. Accordingly, all of the matters in s 425A of the Act were met. There is no evidence that the applicant attended the Tribunal hearing. Accordingly, the discretion to exercise the power in s 426A(1A)(b) of the Act was enlivened.
Any discretionary power held by the Tribunal must be exercised reasonably. Here, the Court is satisfied that the Tribunal’s exercise of the discretion was entirely reasonable. In particular:
(a)the applicant was properly invited to attend the hearing. He had not provided any indication that he would be attending (such as a response to the hearing invitation) or any documents or supporting evidence;
(b)the applicant was sent two reminder SMS messages to his mobile telephone which stated the date and time of the hearing; and
(c)despite the invitation and the SMS messages advising the applicant that he should contact the Tribunal to request an adjournment or to seek assistance, the applicant did not do so. There was no explanation for his non-appearance.
In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [69] it was stated:
69. Where the Tribunal is satisfied that the statutory procedure contemplated by s 425 for inviting the applicant for review to appear before it has been followed and where the applicant without explanation fails to appear, the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under s 426A(1) to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with the applicant. Ordinarily, it could not later be said on judicial review that "no sensible [Tribunal] acting with due appreciation of its responsibilities" could have taken that course.
As noted above, the statutory procedure contemplated by s 425 of the Act was followed. The applicant, without explanation, failed to appear. In these circumstances, and in light of the reminders the applicant was sent about the hearing date and time and the fact that the applicant had shown little engagement and provided minimal detail in relation to his application before both the delegate and the Tribunal, the Court concludes that there is no arguable case that the Tribunal acted unreasonably in the exercise of the discretion under s 426A(1A)(b) of the Act when making the Non-Appearance Decision.
In relation to the Confirmation Decision, the applicant was notified, in accordance with s 426B of the Act, that his application had been dismissed for non-appearance and that he could apply for re-instatement within 14 days (CB 51). More specifically, the Tribunal expressly advised the applicant that he must apply by 29 January 2018. He did not do so.
Where the Tribunal has complied with s 426B of the Act and the applicant has failed to apply for reinstatement, the only decision open to the Tribunal to make is to confirm the
Non-Appearance Decision: the Act, s 426A(1E). Accordingly, there is no arguable case of jurisdictional error in relation to the Confirmation Decision.
Finally, as the Tribunal noted in its Jurisdiction Decision, there is ample judicial authority confirming that the Tribunal cannot review the same delegate’s decision twice: Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301; SZASP v Minister for Immigration & Citizenship [2007] FCA 771; BWI18 v Minister for Home Affairs [2020] FCA 290.
There is no arguable case of jurisdictional error arising from the materials before the Court or in any of the Tribunal’s respective decisions.
This weighs significantly against an extension of time being granted.
Should an extension of time be granted?
The lengthy delay, less than satisfactory explanation for that delay and the lack of 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 an extension of time to be granted in this matter.
The application for an extension of time is, accordingly, refused.
CONCLUSION
The applicant has failed to satisfy the Court that an extension of time should be granted. Accordingly, the extension of time is refused. As a result, the applicant will be ordered to pay the Minister’s costs in the sum sought.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 May 2021
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