AIY19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 376
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AIY19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 376
File number(s): MLG 243 of 2019 Judgment of: JUDGE J YOUNG Date of judgment: 16 May 2023 Catchwords: MIGRATION – extension of time application – applicant filed 273 days out of time – applicant did not attend hearing before Tribunal – applicant did not apply for reinstatement before Tribunal – found no reasonable explanation for delay – found grounds of substantive argument are not reasonably arguable – application dismissed. Legislation: Migration Act 1958 (Cth) pt 7 div 4, ss 425, 426(1A)(b), 426A(1E), 426B(5), 441A(5), 441C(5), 476A(3)(a), 477(1) and 477(2).
Migration Regulations 1994 (Cth) reg 4.35D(3).
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
CZS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 371
FHX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202
Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491
SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tran v Minister for Immigration & Border Protection [2014] FCA 533
VX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 308
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 26 April 2023 Counsel for the Applicant: Self-represented litigant Counsel for the Respondent: Ms Martin of Sparke Helmore Lawyers Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
MLG 243 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIY19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE J YOUNG
DATE OF ORDER:
16 MAY 2023
THE COURT ORDERS THAT:
1.The Application for an extension of time be dismissed.
2.The applicant pay the costs of the first respondent fixed in the sum of $4,189.38.
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 J YOUNG:
INTRODUCTION
Before the Court is an Application filed on 31 January 2019 for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek judicial review of the decision of the second respondent (Tribunal) dated 29 March 2018 confirming its decision to dismiss an application under s 426A(1A)(b) of the Act.
The Application was filed 273 days after the expiry of the statutory timeframe for filing. Not being satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the Application is dismissed. The reasons for this decision follow.
BACKGROUND
The applicant is a citizen of Malaysia who arrived in Australia on 10 May 2017 on a Visitor (Class UD) (subclass 601) Electronic Travel Authority visa.
On 9 August 2017 the applicant applied for a Protection (Class XA) (subclass 866) visa (visa).
On 2 October 2017 a delegate of the Minister (delegate) refused to grant the visa.
On 23 October 2017 the applicant applied to the Tribunal for review of the delegate’s decision. In his application for review, the applicant nominated the email address <[email protected]> (applicant’s email address) for correspondence and provided the mobile number “xxxxx xxx70” (applicant’s mobile).
On 6 February 2018 the Tribunal emailed the applicant enclosing an invitation for him to attend a hearing on 13 March 2018 and with an information sheet attached. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it. The applicant did not respond to the hearing invitation.
On 5 March 2018 and 9 March 2018 the Tribunal sent an SMS hearing reminder to the applicant’s mobile.
The applicant did not attend the hearing on 13 March 2018. Pursuant to s 426(1A)(b) of the Act the Tribunal dismissed the application for non-appearance (dismissal decision).
On 13 March 2018 the Tribunal sent a copy of the dismissal decision to the applicant’s email address. The notification letter sent with the dismissal decision informed the applicant that reinstatement of the application could be sought by 27 March 2018. The applicant was also provided with an information sheet entitled “information about dismissal of applications” which informed the applicant that if reinstatement was not sought within 14 days the Tribunal must confirm the decision to dismiss the application.
The applicant did not apply for reinstatement of the application.
On 29 March 2018 the Tribunal confirmed its original decision to dismiss the application (confirmation decision).
The Tribunal’s decision
Dismissal decision
The Tribunal found that the applicant was invited pursuant to s 425 of the Act to appear before it on 13 March 2018 at 9.30 am but did not appear at the scheduled time and place. The Tribunal found that the applicant was properly invited to a hearing in accordance with s 441A(5) and that two SMS hearing reminders were sent to the applicant prior to the hearing. The Tribunal found that no reason for the non-appearance was given. The Tribunal dismissed the application without further consideration of the application or the information before it.
Confirmation decision
The Tribunal recorded that on 13 March 2018 the application was dismissed pursuant to s 426(1A)(b) of the Act, the applicant had been notified of the dismissal decision and had been given a copy of the written statement in accordance with s 426B(5) of the Act. The Tribunal further recorded that the applicant had been advised that reinstatement of the application could be sought within 14 days of receiving the dismissal decision and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision. The Tribunal found that as the applicant did not apply for reinstatement within the 14 day period it must confirm the decision to dismiss the application.
APPLICATION FOR AN EXTENSION OF TIME
Was the Application filed late?
Section 477(1) of the Act requires that an Application to this Court be made within 35 days of the date of the migration decision.
The Tribunal’s decision was made on 29 March 2018. An Application for judicial review of that decision in this Court was therefore required to be made by no later than 3 May 2018. The Application for judicial review was not made until 31 January 2019.
Accordingly, the Application was made 273 days after the expiry of the statutory timeframe.
Should the Court be satisfied to make an Order extending time?
Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an Application must be made, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an Order.
The Act does not specify any criteria which must be satisfied to establish that it is “in the interests of the administration of justice” to grant an extension.
The principles regarding an Application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that decision, Jagot and Halley JJ found that the Court has an obligation “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”.[1] Further, they identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(1)the extent of the delay and explanation for it;
(2)any prejudice to the respondent if an extension were granted;
(3)the impact on the applicant if the time was not extended;
(4)the interests of the public at large; and
(5)the merits of the substantive Application.
[1]BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 [40]
In the Application, the applicant specified two grounds as to why they say it is necessary in the interests of the administration of justice to extend time, in the following terms (without alteration):
(1)I admit that there was a delay because I had spoken an agent of AUD 1,000.00 to manage it, unfortunately I was deceived.
(2)I also did not have enough money after being deceived by the agent, so i get advice from my acquaintance to help me.
Other than the accompanying affidavit which annexed the Tribunal’s decision, nothing further was filed in support of the request for an extension of the time for filing.
At the hearing of this matter, the applicant was invited to elaborate and sought to add the following for consideration of the Court:
(a)he wanted to remain in Australia;
(b)he was unwell on the day of the hearing on 13 March 2018; and
(c)he had chickenpox at the time of the hearing which restricted him to his home for four months.
Delay and explanation
The delay is significant, being a period of 273 days. The Court has, in other cases, described a delay of 74 days as “substantial” and a delay of 54 days as likely to be fatal to an Application for an extension of time where there is no reason for the delay: WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14]; and WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].
Typically the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] (Tran). The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of long delay: Tran at [38].
The applicant has not offered a plausible or acceptable explanation for the delay in making this Application. There is no evidence that the applicant appointed or was deceived by an agent. As to the applicant’s asserted inability to pay the filing fee, there is no evidence before the Court of the applicant’s financial circumstances to establish any such inability or any evidence that he sought a waiver of the fee. Without evidence, there is an insufficient basis upon which to assess the explanation: Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279. As to the further matters submitted at the hearing, such matters do not go to the delay in lodgement of the Application, rather they go to the applicant’s failure to attend the hearing before the Tribunal on 13 March 2018.
Considered individually or together, I am not persuaded that there is a reasonable explanation for the delay in the present case. The length and explanation for the delay weigh strongly against an extension of time in this matter.
Prejudice
The first respondent properly did not contend it would suffer any particular prejudice if the applicant was granted an Order allowing an extension of time.
However, the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].
I assess this as a neutral consideration.
Public interest and impact on the applicant
There is a public interest in ensuring that decisions of the Executive are made lawfully. The merits of the substantive grounds relied upon by the applicant, which are considered below, will of course be relevant to this. It has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17].
As to the impact upon the applicant, if the extension of time is refused then the Tribunal’s decision will stand. Although an alternative route of review might be available, under s 476A(3)(a) of the Act the refusal of an explanation for an extension of time forecloses any right of appeal; see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [65].
I accept the impact on the applicant is significant in that they would be returned to their country of nationality which is a circumstance they say they fear, and that this is a matter weighing in favour of the grant of an extension.
Merits of the substantive Application
The time limitation reflects the Parliament’s intention that an applicant should have only a relatively short time in which to challenge a decision of the Tribunal. While the discretion of the Court is broad, the Court should not permit an Application to proceed if it is bound to fail, and should accordingly decline to extend time.
The case law makes clear that, for the purposes of an extension of time Application, the Court is concerned with whether the grounds available to the applicant are reasonably arguable.
There are four grounds of the substantive Application as follows (without alteration):
(1)The tribunal failed to consider many vital integers of my case.
(2)The tribunal failed to consider many vital evidence that are relevant to my case because the AAT deemed they had no jurisdiction to hear my case, as I had filed 2 days out of time.
(3)The tribunal deprived me of procedural fairness.
(4)The tribunal member relied on incorrect information and decided my case using facts from some other tribunal case; the member has failed to do her duty; the tribunal deprived me of procedural fairness:
(a)The tribunal member failed to ask me questions about the types of harm relevant in my case.
(b)The member has failed to do her duty.
I am not persuaded that the grounds of the substantive Application are reasonably arguable for the following reasons.
Firstly, the proposed grounds are not specifically directed to the Tribunal’s decision and are not particularised. See, eg, FHX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202; CZS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 371; AVX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 308.
Secondly, grounds one, two and four are misconceived. It is clear that the Tribunal did have jurisdiction to proceed with the review. Further, under s 426A of the Act, when an applicant is properly invited to attend a hearing but fails to do so, s 426A(1A)(b) empowers the Tribunal to dismiss the Application without further consideration of the Application or information before it. Accordingly, the Tribunal was not required to consider the applicant’s protection claims. As the applicant failed to appear at the hearing, the Tribunal could not ask questions about the types of harm relevant to the applicant’s case.
Further, the Tribunal’s exercise of the power in the present case was reasonable because the applicant had been properly notified of the hearing, including by two SMS reminders close to the hearing date, informed as to the consequence of failing to attend, the Tribunal waited 90 minutes after the scheduled start time before determining that the applicant had not appeared and no reason for non-appearance was given or request for an adjournment was made. As to the applicant’s assertion that he was unwell on the day of the hearing and had chickenpox, there was no evidence of this before the Tribunal at any time nor provided subsequently in relation to possible reinstatement; nor is there any evidence of this now before the Court.
Further, the applicant did not file for reinstatement of the Application within 14 days. Therefore the Tribunal was required to confirm the dismissal decision by s 426A(1E) of the Act.
Accordingly, there is no reasonably arguable jurisdictional error by the Tribunal in relation to these grounds of the substantive Application on those bases.
As to grounds three and four in so far as they allege a denial of procedural fairness, the Tribunal proceedings were conducted under Part 7 of the Act. Division 4 of Part 7 exhaustively codifies or confines the Tribunal’s procedural fairness obligations in this regard.
Under s 426A of the Act, if a person is invited under s 425 to appear before the Tribunal and does not appear at the scheduled time and place, as set out above, s 426A(1A)(b) empowers the Tribunal to dismiss the Application without further consideration of the Application or information before it. The Tribunal’s power in s 426A can only be exercised if the requirements set out in s 426A(1) are satisfied: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [63]. As to s 426A(1)(a), the applicant was invited to a hearing before the Tribunal under s 425 of the Act. That invitation:
(1)gave the applicant notice of the day, time and place of the scheduled hearing;
(2)gave the applicant notice by one of the methods specified in s 441A of the Act, namely, transmitting it by email to his nominated email address, being the last email address provided to the Tribunal in connection with the review as required by s 441A(5) of the Act;
(3)gave a period of notice that was at least the prescribed period, being 14 days after the date of receipt of the notice: reg 4.35D(3) of the Migration Regulations 1994 (Cth). As the hearing invitation was sent by email, the applicant was taken to have received it at the end of the day on which it was transmitted: s 441C(5) of the Act. The applicant was notified of the hearing on 6 February 2018 and was therefore given 35 days’ notice of the scheduled hearing; and
(4)contained a statement of the effect of s 426A of the Act.
It therefore complied with s 425A of the Act.
As to s 426A(1)(b), the applicant did not appear on the day on which, or at the time and place at which, he was scheduled to appear. The hearing record shows that the Tribunal waited 90 minutes before determining that the applicant would not attend. Accordingly, the requirements of s 426A(1)(b) were met. As the applicant was validly invited to a Tribunal hearing, the Tribunal was entitled to dismiss the Application by reason of the applicant’s failure to attend the hearing: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 at [5].
Accordingly, there is no reasonably arguable jurisdictional error by the Tribunal in relation to grounds three and four of the substantive Application on this basis.
CONCLUSION
The Application in this case is 273 days outside the statutory timeframe. The Court may only grant an extension of the time within which the Application was to be made if satisfied such extension is in the interests of the administration of justice.
Weighing all of the considerations above, I am not satisfied it is in the interests of the administration of justice that there be an extension of the period to make an Application for judicial review. The Application is dismissed.
The Application will be dismissed with an Order that the applicant pay the first respondent’s costs in the scale amount of $4,189.38.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 16 May 2023
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