AIR20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 297
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AIR20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 297
File number(s): MLG 260 of 2020 Judgment of: JUDGE GOODCHILD Date of judgment: 3 May 2023 Catchwords: MIGRATION - protection visa - decision of the Administrative Appeals Tribunal - extension of time application - significant delay - unsatisfactory explanation for delay - no prejudice - no arguable case of jurisdictional error - application dismissed Legislation: Migration Act 1958 (Cth) ss 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
Bala v Minister for Immigration & Border Protection [2019] FCA 600
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 and 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) 238 FCR 158
MZAIB v Minister for Immigration & Border Protection (2015) 242 FCR 585
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
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: 81 Date of hearing: 20 April 2023 Place: Sydney Applicant: In Person Solicitor for the Respondents: Ms P Durham of Australian Government Solicitor ORDERS
MLG 260 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIR20
Applicant
AND: MINISTER FOR 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
The applicant in these proceedings (“the applicant”) is a 29-year-old citizen of Malaysia. He arrived in Australia on 21 September 2017 and lodged an application for a Protection (class XA) (866) visa (“the visa”) on 18 December 2017 (Court Book (“CB”) 14 to 42).
On 26 February 2018, a delegate of the then Minister for Immigration (“the delegate”) made a decision (“the delegate’s decision”) not to grant the applicant a protection visa (CB 56 to 67).
On 28 February 2018, the applicant lodged an application with the Administrative Appeals Tribunal (“the Tribunal”) for the review of the delegate’s decision. In his review application, the applicant nominated an email address for service of documents (“the nominated email address”), and also provided a mobile number.
On 5 September 2018, the Tribunal emailed the applicant’s nominated email address inviting the applicant to attend a hearing on 17 October 2018 at 1:00pm (NSW time). In that correspondence, the Tribunal advised the applicant that at the hearing he would be provided the opportunity to give evidence and present arguments relating to the issues in his case (CB 73 to 79).
On 10 October 2018, an SMS was sent to the applicant’s nominated mobile number reminding him of the hearing date (CB 89).
A further SMS reminder was sent to the applicant on 16 October 2018, the day before the scheduled hearing (CB 89).
At the Tribunal hearing on 17 October 2018, there was no appearance by or on behalf of the applicant (CB 80).
As a result of the applicant’s failure to attend the Tribunal hearing on 17 October 2018, 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 23 October 2018 a copy of that decision was emailed to the applicant at his 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 83 to 88).
The applicant did not apply for reinstatement. On 7 November 2018, the Tribunal made a decision to confirm the Non-Appearance Decision (“the Confirmation Decision”) (CB 92 to 93), which by virtue of s 426A(1F) of the Act, meant the delegate’s decision was taken to be affirmed.
By an application filed in this Court on 24 January 2020, the applicant seeks an extension of time to apply for judicial review of the Tribunal’s Confirmation Decision. The applicant does not refer in his application to the Tribunal’s Non-Appearance decision and this decision was not attached to the applicant’s Affidavit in support of the application. However, I treat this review application with respect to both the Tribunal’s Non-Appearance Decision of 22 October 2018 and the Tribunal’s Confirmation Decision dated 7 November 2018.
For completeness, I note that on 31 March 2019 the applicant filed another application for review in the Tribunal, attaching the Confirmation Decision and referring to the decision made on 22 October 2018 (CB 96 to 101). On 9 April 2019, the Tribunal wrote to the applicant, advising him that his application was not valid as the Confirmation Decision was not a decision that the Tribunal could review, and inviting him to comment by 23 April 2019 (CB 102 to 103). The applicant did not provide any response. On 17 January 2019, the Tribunal found that it did not have jurisdiction to review the Confirmation Decision (CB 106 to 108).
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 458 days out-of-time in relation to the Non-Appearance Decision (dated 22 October 2018), and 443 days out-of-time with respect to the Confirmation Decision (dated 7 November 2018).
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.
This Judgment addresses whether an extension of time should be granted.
For the reasons that follow, the Court concludes than 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 24 January 2020 seeking an extension of time, and provided therein the following “grounds” for why he believes an extension should be granted:
1.AT THAT TIME I DO NOT HAVE ENOUGH MONEY TO PROCESS AND I DO NOT HAVE MONEY TO PAY LEGAL AID SO I GET SOME ADVICE FROM VOLUNTEER UNION OF WORKER TO APPEAL AT COURT.
(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.
[4] MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158 (“MZAIB”).
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 24 January 2020;
·the applicant’s Affidavit filed in support of his Originating Application dated 24 January 2020;
·the first respondent’s Response filed 19 February 2020;
·the Court Book filed by the first respondent on 3 March 2022;
·the first respondent’s written Outline of Submissions filed 5 April 2023;
·the first respondent’s List of Authorities filed 5 April 2023;
·the applicant’s written Outline of Submissions filed 6 April 2023; and
·the first respondent’s Affidavit of service filed 18 April 2023.
The Court confirmed with the applicant that he had the Court Book and the Outline of Submissions of the first respondent. The matter was stood down for a period of time to allow the interpreter to interpret to 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 379 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 458 days out-of-time in relation to the Non-Appearance Decision and 443 days out-of-time 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 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.
The Affidavit filed by the applicant in support of his judicial review application does not provide any explanation for the delay in commencing the proceedings in this Court. In that Affidavit, the applicant refers to both the Non-Appearance Decision and Confirmation Decision made by the Tribunal. It is in the Application as quoted above (at [18]), and the applicant’s written Outline of Submissions where he provides some detail as an explanation for delay.
The applicant’s claim for protection relates to his identification as a member of the LGBTQI+ community. The applicant and his partner landed in Australia on 21 September 2017. On 18 December 2017 he applied for a Protection visa. The applicant submits that he sought assistance from friends to complete his Protection visa application because he had no knowledge about the application process and he did not have a command of English at the time. Upon learning of the refusal of his visa application the applicant sought a review from the Tribunal on 28 February 2018.
During 2018 the applicant says he was facing financial difficulties because of irregular employment at the time. He was required to borrow money from friends to pay rent and purchase daily necessities. Around the time of 5 September 2018, the applicant says he was in a “rather remote area that did not have telephone network”. The applicant confirmed that he received an email to attend the Tribunal hearing. The applicant submits that at around this time, his relationship with his partner broke down which the applicant submits was very difficult for him to accept and he says he was living with depression. He says this was the reason that he could not attend the hearing on 17 October 2018, as he says he was unable to think coherently to make a decision about himself. He confirms in his written Outline of Submissions that he did receive notification from the Tribunal informing him that his application had been rejected. He says, however, that he was unable to do anything at the time due to the difficulties in his life and being under immense pressure.
The applicant submits that in April 2019 he began to recover and became stronger. He realised that he wished to stay in Australia because of the freedom and better life than is in his own country. In January 2020 he says he was advised by a friend to file court proceedings.
When given the opportunity to make further oral submissions at the hearing before me on 20 April 2023, the applicant had nothing further to add.
Whilst the Court appreciates this may have been a very difficult time for this young man, an applicant 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 did not do that. The applicant has not put any evidence before the Court indicating that at the relevant time he was medically incapable of doing what was required of him to pursue his application. Further, there is no evidence that the applicant sought assistance from the Court or sought assistance from the Tribunal about what was required from him.
This weighs against the granting of 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”.
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”[16]. 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[17], 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.[18]
[16] CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at 452 [19].
[17] MZABP [2015] FCA 1391; (2015) 242 FCR 585 at 597 [58].
[18] Federal Court of Australia Act 1976 (Cth), s 24(1)(a).
The application for judicial review filed by the applicant on 24 January 2020 includes, in summary, the following grounds of review:
1. THE DEPARMENT (FIRST RESPONDENT) NOT CONSIDER MANY VITAL INTEGER OF MY CASE:
1.1I WAS NOT INTERVIEWED BY DEPARTMENT OF HOME AFFAIRS ABOUT MY CLAIMS SO I NEVER HAD A CHANCE TO EXPLAIN THE REAL HARM, MISTREATED AND MY FEARS ON RETURN TO MALAYSIA.
1.2AS I MENTIONED IN THE BACKGROUND (PARAGRAPH 1.1) I WAS LODGED MY APPLICATION WITH ALL MY INFORMATION INCLUDED COPY OF MY MALAYSIAN PASSPORT; DIRECTLY THE DEPARTMENT ARE NOTICE ABOUT MY ETHNIC AND RELIGION. THE DEPARTMENT ALSO NOTED ABOUT MY CLAIMS.
1.3MY CLAIMS WITH THE FOLLOWING ADVICE FROM THE REPORT DEPARTMENT OF FOREIGN AFFAIRS AND TRADE (DFAT) VERSION 13 SEPTEMBER 2019;
(References omitted)
1.3.2REFER TO THAT REPORTS ALSO INDICATE THAT “BEING HOMOSEXUAL” IS NOT TOLERATED BY MY COMMUNITY GENERALLY OR ANY OF THE RELIGIOUS FAITHS, AND THERE ARE REPORTS OF MEN AND WOMEN BEING ABUSED, THREATED AND ASSAULTED THE REASON OF THEIR SEXUAL ORIENTATION
1.3.3THE HUMAN RIGHTS WATCH 2019 WORLD REPORT ON MALAYSIA STATES THAT “DISCRIMINATION AGAINST LESBIAN, GAY, BISEXUAL, AND TRANSGENDER PEOPLE IS PERVSIE IN MALAYSIA. PLEASE REFER THIS WEBSITE LINK:
(Reference omitted)
2. ACCORDING IN SECTION 44 OF ADMINISTRATIVE APPEAL TRIBUNAL ACT 1975 THERE IS A DESCRIPTION AUTHORIZING ME TO MAKE SYCH ACION APPEAL TO FEDERAL CIRCUIT COURT.
(As per original)
The applicant’s written Outline of Submissions did not provide any supportive argument with regards to the merit of his “grounds of review”. I gave the applicant an opportunity to elaborate on the substantive “grounds of review” identified in his application, and to outline otherwise, any concerns that he might have in relation to the Tribunal’s decisions.[19]
[19] This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
While the applicant’s oral submissions did not 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 decisions.[20]
[20] MZAIB [59] to [77].
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:
(a)whether the applicant was properly invited to attend the Tribunal hearing;
(b)whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance; and
(c)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 22 October 2018 provides (CB 86):
1. The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 17 October 2018 at 1:00pm. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without 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.441A(5) of the Act, 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 satisfactory 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.
(As per original)
The Confirmation Decision
The Confirmation Decision dated 7 November 2018 provides (CB 94):
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the minister for immigration on 26 February 2018 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 22 October 2018 the Tribunal dismissed the application under s426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the 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.246B(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 day 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 17 October 2018 which resulted in the Tribunal dismissing the applicant’s application for review pursuant to s 426(1A)(b) of the Act.
On 5 September 2018, an email was sent from the Tribunal to the applicant’s 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 1.00pm (NSW time) on 17 October 2018, at a specified address which was the Tribunal’s Sydney registry (CB 73 to 75). The applicant conceded he received this email.
Notably, in the correspondence sent from the Tribunal notifying the applicant of the hearing, the following paragraphs are included (CB 75):
If you are not able to attend the hearing you should advise us as soon as possible. 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 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.
(As per original)
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:
(a)was addressed to the applicant (CB 73 to 75);
(b)clearly indicated the date, time and means by which the applicant could attend the Tribunal hearing (CB 74);
(c)was sent to the applicant’s email address provided by him in his review application (CB 74), noting that the email notification is a method approved by s 441A(5)(b) of the Act;
(d)was provided to the applicant 42 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
(e)contained information describing the effect of s 426A of the Act and the particular consequences of a failure to attend the hearing (CB 75).
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 5 September 2018), regardless of whether the document was actually received.[21]
[21] 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 jurisdictional error arises in relation to the Tribunal’s procedural fairness obligations concerning the invitation of the applicant to the hearing.
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[22] (citing ACN22[23]), 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.
[22] BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176 (“BHG22”).
[23] 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.[24] 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.
[24] 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 17 October 2018. 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 426(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)after lodging his application for review (on 28 February 2018), there is no evidence that the applicant engaged with or made contact with the Tribunal (until after the Confirmation Decision had been made);
(c)no further material had been provided to the Tribunal by the applicant in support of his review application;
(d)an SMS hearing reminder was sent to the applicant’s nominated mobile number on 10 and 16 October 2018 (CB 89);
(e)the applicant did not appear at the Tribunal hearing at the scheduled time of 1.00pm (NSW time) on 17 October 2018 (CB 80 to 82).
The Court further notes that, as was explained in BHG22 (citing Sun[25] and Mohammed[26]), 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.[27] 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.[28]
[25] Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901.
[26] Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268.
[27] SZFHC at [39].
[28] SZFHC at [41].
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 jurisdictional error arises in this regard.
Whether the Tribunal erred by confirming the decision to dismiss the application
Insofar as the applicant raises any concerns in relation to the Tribunal’s Confirmation Decision, the Court notes that applicant was notified (by email) of the Non-Appearance Decision on 23 October 2018 (CB 83 to 89).
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 6 November 2018). Relevantly, the letter to the applicant provided as follows (CB 86):
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 6 November 2018. 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.
The applicant did not seek reinstatement or make any contact with the Tribunal 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 7 November 2018 (CB 91 to 94).
No jurisdictional 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.[29] 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.
[29] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [97]; EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 at [22].
On 23 October 2018, 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).
With respect to the grounds in the applicant’s substantive application which appear to refer to parts of the delegate’s refusal decision on 26 February 2018, and which complain about the conduct of the delegate with respect to the decision, this Court has no review jurisdiction of that delegate’s decision pursuant to s 476(2)(a) of the Act.
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 one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 3 May 2023
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