AIV24 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1257
•28 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AIV24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1257
File number(s): MLG 189 of 2024 Judgment of: JUDGE CORBETT Date of judgment: 28 November 2024 Catchwords: MIGRATION – Protection (Class XA) (Subclass 866) visa application for review of Registrar’s decision – whether adequate explanation for delay - whether to exercise discretion to extend time – no reasonable prospects of successfully prosecuting application - application dismissed. Legislation: Migration Act 1958 (Cth) ss 5LA, 36(2A), 36(2)(aa), 412(1)(a)
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth)
Migration Regulations 1994 r 4.31(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 256, 254, 256(1)(a)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.13(a), 21.02, 21.02(2), 21.04, 21.04(2)
Cases cited: AIV24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 924
AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426
Allison v Murphy [2021] FCAFC 232
Beni v Minister for Immigration and Border protection [2018] FCAFC 228
Brar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 846
DAP17 v Minister for Home Affairs [2019] FCCA 801
Hunter Valley Development Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 616
Khurana v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1068
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submission/s: 8 November 2024 Date of hearing: 8 November 2024 Place: Melbourne Solicitor for the Applicant The applicant appeared in person Solicitor for the Respondents Ms Rath, Sparke Helmore Lawyers ORDERS
MLG 189 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIV24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIR
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
28 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the second respondent be amended to Administrative Review Tribunal.
2.The application for review filed 22 October 2024 seeking to review the exercise of the Registrar’s power to summarily dismiss the proceeding be dismissed.
3.The applicant pay the first respondent’s costs and disbursements of an incidental to the application for review fixed in the sum of $1,000.00.
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 CORBETT
The applicant sought judicial review of a decision of the second respondent (Tribunal) made 18 January 2024. The Tribunal determined it did not have jurisdiction to review the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa).
The application for judicial review was filed with this Court on 30 January 2024. In the Response to the application for judicial review filed 8 February 2024, the Minister applied for an order for summary dismissal pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
On 18 September 2024, a Registrar of this Court made an order summarily dismissing the application for judicial review and found that the application had no reasonable prospects of success. The registrar delivered written reasons (see: AIV24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 924).
On 22 October 2024, the applicant sought review of the Registrar’s decision (Review Application). The time within which to make an application for review of a Registrar’s decision is fixed by r 21.02 of the Rules. An application for review must be made within seven days. The Review Application in this case was made 27 days late, therefore, the applicant was required to apply for and obtain an order extending time under r 21.02(2) of the Rules.
For the reasons that follow, an extension of time is refused, and the Review Application is dismissed.
References in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court on 8 November 2024, marked exhibit “R1”.
BACKGROUND
The applicant is a Timor-Leste national. The applicant first arrived in Australia on 9 June 2022 as the holder of a Visitor (Subclass 600) visa (CB 10).
On 24 January 2023, the applicant applied for the visa (CB 1-22).
On 13 September 2023, a delegate of the Minister refused to grant the visa (CB 46-50). The delegate found that, based on country information, there were effective protection measures as defined in s 5LA of the Migration Act 1958 (Cth) (Act) available to the applicant in Timor-Leste. On this basis, the delegate was “not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Timor-Leste, there is a real risk [the applicant] will suffer significant harm as defined in s 36(2A) of the Act”. The delegate was also not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act. The delegate found that the applicant did not satisfy the primary and secondary criteria in ss 36(2)(a) and 36(2)(aa) of the Act (CB 50).
The applicant was notified of that decision on 13 September 2023 via email (CB 51).
On 20 October 2023, the applicant applied to the Tribunal for review of the delegate’s decision (CB 52-9). That application was filed beyond the prescribed time limit pursuant to r 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations). The time limit prescribed by the Regulations is 28 days from the date of notification of the delegate’s decision. The application for review by the Tribunal was ten days out of time.
TRIBUNAL DECISION
On 24 October 2023, the Tribunal invited the applicant to comment on the validity of her application for review as it had not been lodged within the prescribed time limit (CB 62-3).
On 25 October 2023, the applicant responded to the Tribunal’s invitation to comment as follows (verbatim) (CB 64):
With regards to your email dated 24th of October 2023 in relation to an application for review by the Migration and Refugee Division of the AAT. I would like to acknowledge the received of the email and take note of the information on the email attachment. Therefore, I would like to inform you that at the time, I was not able to access my email because I forgot my password and it created an error to login my email. I was able to access my email again on the 19th of October 2023 and I realised that due to these circumstances I would not be able to respond to the email from the Department of Home Affairs regarding IMMI refusal notification dated 13th of September 2023.
Please consider my apology for the stated circumstances in order for the Migration and refugee Division of the AAT to review again my application to be valid.
Once again please accept my sincere apologies for inconvenience caused.
Thank you for your kind attention and consideration.
On 10 January 2024, the Tribunal notified the applicant that it did not have jurisdiction in the matter because the application for review was filed outside the prescribed time limit (CB 68-70) (Decision).
PROCEEDINGS IN THIS COURT
Application for Judicial Review
On 30 January 2024, the applicant filed an application seeking judicial review of the Decision. The application contained seven grounds of review as follows (verbatim):
1.Procedural Fairness. The tribunal did not care about the reasons given by using absolute power to not give the applicant a chance for a hearing or to accept this case.
2.AAT failed to understand the gravity of this case (Jurisdiction).
3.The laws including prevailing laws in Australia.
4.This case was not heard despite the legal lodgement (Jurisdiction).
5.The applicant also seeking review at FCC as the applicant have intention to request Judge to look into this matter in order to give the natural justice.
6.According to the protection claims, the applicant believed that she has met the criteria of 866 Subclass under the Migration Act 1958.
7.Australia has obligation to protect people under Refugee Convention and the applicant would like to use the right in Australia to be protected.
The application was supported by an affidavit affirmed by the applicant on 30 January 2024, which annexed the Decision.
On 2 September 2024, Registrar Cummings made orders which gave the applicant the opportunity to file any amended application for judicial review, written submissions and any further evidence in opposition to the summary dismissal application on or before 13 September 2024. The applicant did not file or serve any further material. The Registrar also made orders that the summary dismissal application be listed for a hearing before the Court on 18 September 2024.
On 18 September 2024, the Registrar found that the applicant for judicial review had no reasonable prospects of success and summarily dismissed the application for judicial review pursuant to r 13.13(a) of the Rules.
Application for Review of Registrar’s Decision
On 22 October 2024, the applicant filed the Review Application. The Review Application contained two grounds of review as follows (verbatim):
1. To get AAT to review my case based on facts and evidence.
2. To get AAT to make a decision not based on their opinion but based on truth.
No application was made for an extension of time to make the Review Application.
The Review Application was listed for hearing before this Court on 8 November 2024.
At the hearing on 8 November 2024, the applicant appeared in person with the assistance of an interpreter fluent in the English and Tetum languages. Ms Rath, solicitor, appeared on behalf of the Minister.
APPLICANT’S SUBMISSIONS
Noting that the applicant was unrepresented, the Court explained that the Review Application was filed late and therefore the applicant must seek an extension of time. The Court asked the applicant to explain to the Court why the Review Application was filed 27 days late.
The applicant explained to the Court that she was late to file the Review Application because she had dropped and shattered her mobile phone and needed to wait until she could purchase a new phone. She told the Court that upon purchasing the new phone, the applicant opened her emails and had forgotten the password, and it wasn’t until she located her password that she was able to access the email. The applicant further stated that she was working to pay off her debt in Timor-Leste, and at the time, did not have sufficient funds to lodge the Review Application.
The Court noted that this appeared to be the same explanation given to the Tribunal as to the late filing of the application for review (CB 64). The Court explained that the applicant must tell the Court why the Review Application of the Registrar’s decision was late. The applicant was unable to assist other than to repeat that she was trying to repay her debts in Timor.
The Court confirmed with the applicant that she completed the Review Application herself. The Court then directed the applicant to the Decision and invited the applicant to try and explain to the Court any errors in the Tribunal’s reasons (CB 69-70). Put simply, the applicant was asked what was wrong with the Decision and why it should be set aside. The applicant responded by stating that she wanted her visa to be renewed so that she could pay off the debt she owed in Timor-Leste. The applicant was otherwise unable to assist the Court.
The Court informed the applicant that the role of the Court is restricted and that it cannot grant her a visa (see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272). Therefore, the applicant would need to identify a jurisdictional error or “legal mistake” in the Decision to have it set aside.
The Court again invited the applicant to tell the Court why the Tribunal was wrong in arriving at the Decision. The applicant responded by saying, “excuse me then, it looks like I’m the one that is wrong”.
The Court gave the applicant another opportunity to provide any other information in relation to her Review Application, however, the applicant was unable to assist and could not explain her application for judicial review or why it was made other than to confirm that she wanted a visa to work and repay her debts.
MINISTER’S SUBMISSIONS
The solicitor for the Minister submitted that the applicant failed to meaningfully demonstrate to the Court any errors in the Decision and stated that the applicant provided no reasons for the delay in filing the Review Application.
Ms Rath otherwise sought to rely upon the Minister’s written submission filed 4 November 2024 which, among other things, submitted that the Court should not exercise its discretion to extend time to make the Review Application because the application for judicial review has no reasonable prospects of success. It was submitted that the Review Application was incompetent in the absence of an application for an extension of time (see: Kaur v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 616 at [15],[18]-[19] per Judge Vasta (Kaur)).
The Minister also sought costs of the Review Application in the sum of $1,000.00.
REPLY
In response, the applicant said, “I just ask that I can get a visa so that I can work to pay for those costs, at the moment I have no visa…so it is impossible to pay for those costs”.
CONSIDERATION
Section 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) permits a party to a proceeding to apply to the Court for review of the exercise of a delegated power. The power to delegate functions of the Court to the Registrars is to be found in s 254 of the FCFCOA Act.
The power to review under s 256(1)(a) of the FCFCOA Act is conditional upon the party making the application “within the time prescribed by the Rules of Court”. The time prescribed by r 21.02 of the Rules is seven days from the date of exercise of the power.
The Court has a broad discretion to grant an extension of time pursuant to r 21.02 of the Rules. The Court may have regard to the length of and explanation for the delay, whether the granting of an extension of time will prejudice the other parties to the proceeding, and the merits of the underlying application (see: Hunter Valley Development Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, at 348-9 (Hunter Valley)). Such considerations provide guidance and consistency in the approach to such applications, however, are not exhaustive considerations that the Court must contemplate (see: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [41]-[43]).
If an application is made within time or an extension of time is granted, a review of the exercise of power by a Registrar must proceed by way of a hearing de novo in accordance with r 21.04 of the Rules. This Court “is not concerned with the correctness of the decision of the Registrar or redressing any perceived error in that decision”, rather, it is required to consider the Minister’s dismissal application afresh (see: Allison v Murphy [2021] FCAFC 232 at [11], per Besanko, Colvin and Downes JJ).
It is not necessary for the applicant to establish any error on the part of the Registrar. In the review, the Court may receive as evidence any affidavit or exhibit tendered before the Registrar, receive further evidence with leave, and any transcript of the proceeding before the Registrar (r 21.04(2) of the Rules).
Nevertheless, before the Court may undertake a review, the jurisdiction of the Court to undertake a review must be properly invoked. Here, the Review Application was out of time, therefore, an application for an extension of time was a prerequisite to the review.
In Kaur, Judge Vasta held that where an extension of time is required but not applied for, the Court has no jurisdiction to hear the application for review. In Khurana v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1068 at [12], Judge Vasta held that where there is no application for an extension of time, the application for review is “incompetent and must be dismissed”. His Honour applied the same reasoning in Brar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 846 at [17].
The applicant did not apply for an extension of time, nor did the applicant provide any explanation for failing to make the Review Application within the seven-day time limit. There was no affidavit filed in support of an extension of time and no evidence of any error or misunderstanding by the applicant about the time limit. At best, the applicant said that she did not have the funds to pay for an application, however there was no evidence to support that assertion, nor was there evidence that an application to waive the court fee was made but was unsuccessful. There was simply nothing for the Court to consider in support of an application for an extension of time if one had been made.
In AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426 at [12], Judge Given noted that in this Court, applications for an extension of time are sometimes made orally or by implication arising from a submission of the applicant. However, there is typically some evidence, document or explanation provided to explain why the time limit was not complied with. In this case, the applicant was unable to assist the Court as to an explanation for delay other than to assert a general lack of funds.
In SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38], Foster J said:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated time frame, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay.
Consistent with the principles in Hunter Valley, the Court may have regard to a wide range of circumstances when exercising the discretion to extend time. Such circumstances include delay (properly explained), prejudice and the underlying merits of the application for judicial review. Here, the length of the delay was relatively short, but was not properly explained. The Minister correctly submitted that there was no prejudice suffered by the delay. However, the absence of prejudice is insufficient to warrant the grant of an extension (see: Hunter Valley at 348-9; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]).
MERITS
Whilst the Review Application is not competent and there is no jurisdiction to hear it without an application for an extension of time, if the Court was asked to exercise its discretion to extend time, it would not be inclined to do so because the merits of the application for judicial review are unarguable. The Registrar was correct to summarily dismiss the application for judicial review because there are no reasonable prospects of successfully prosecuting the application. The Tribunal has no power to extend the time within which an unsuccessful applicant for a protection visa may apply to the Tribunal for review, nor can the Tribunal waive the jurisdictional precondition in s 412(1)(a) of the Act and r 4.31(2) of the Regulations (see: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [19]; Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [82]; DAP17 v Minister for Home Affairs [2019] FCCA 801 at [48]-[49] per Judge Kendall).
CONCLUSION
The Review Application was not made within the time required by the Rules and no application has been made to extend time. There has been no attempt to explain the applicant’s failure to comply with the Rules and no evidence upon which the Court could exercise the discretion to extend time. Further, even if there was an application to extend time the Court would not be inclined to do so because the merits of the application for judicial review are unarguable and bound to fail. The Review Application is dismissed.
COSTS
At the conclusion of the Minister’s submissions, the solicitor for the Minister informed the Court that if the Review Application was dismissed, the Minister sought an order for legal costs and disbursements associated with the review Application fixed in the sum of $1,000.00. The Court considers that sum to be fair and reasonable.
OTHER MATTERS
The Court confirmed with the solicitor for the Minister that, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal.
ORDERS
The name of the second respondent be amended to Administrative Review Tribunal.
The application for review filed 22 October 2024 seeking to review the exercise of the Registrar’s power to summarily dismiss the proceeding be dismissed.
The applicant pay the first respondent’s costs and disbursements of an incidental to the application for review fixed in the sum of $1,000.00.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 28 November 2024
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