Aja18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1124
•4 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AJA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1124
File number: MLG 195 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 4 December 2023 Catchwords: MIGRATION LAW – Protection Visa – Whether there should be an extension of time – Where the Tribunal sent hearing invitation to last provided email address in compliance with its statutory obligations – Where Applicant deemed by statutory provision to have received email – Where the Applicant did not appear at the Tribunal hearing – Tribunal’s decision not legally unreasonable or affected by other jurisdictional error – Where Applicant filed application some 370 days out of time – Where the underlying application has little or no prospects of success – Application for extension of time refused Legislation: Migration Act 1958 (Cth) ss. 36, 65, 425, 425A, 426, 426A, 430A, 441A, 441C, 477 Cases cited: BZADA v Minister for Immigration and Citizenship [2013] FCA 1062
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; [2015] FCA 1391
MZZYV v Minister for Immigration and Border Protection [2016] FCA 956
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tu’uta Katoa v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 178 ALD 573, [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of last submission/s: 23 November 2023 Date of hearing: 23 November 2023 Place: Melbourne Counsel for the Applicant: Appearing in person Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 195 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AJA18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
4 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application for an extension of time is refused.
2.The Applicant pay the First Respondent’s costs 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 CHAMPION:
INTRODUCTION
The Applicant is citizen of Malaysia. The Applicant applied for a Protection (Subclass XA) visa on the basis that: “I left my country because I am being pressured by society and the religious department due to my status as a gay person. The society can’t accept my appearance as a woman”: Protection Visa application (CB30).
The Applicant commenced her application for judicial review approximately one year out of time and therefore requires an extension of time to pursue it under s. 477(2) of the Migration Act 1958 (Cth). She states her grounds for her underlying judicial review application in very broad terms: first, that the Tribunal’s decision was affected by an error of law (Ground 1); and, secondly, that she was denied procedural fairness (Ground 2).
In accordance with its obligations under s. 425(1) of the Act, the Tribunal invited the Applicant to appear before it to give evidence and present arguments relating to issues arising in relation to the decision under review. The Tribunal transmitted the hearing invitation by email to the last email address the Applicant had provided to the Tribunal: s. 441A(5). Section 441C(5) deemed the Applicant to have received the email at the end of the day on which the document was transmitted. The Applicant did not appear at the Tribunal hearing. When the Applicant did not appear at the hearing, the Tribunal exercised its discretion to make a decision on the review on the evidence before it without taking any further action to allow or enable the Applicant to appear before it pursuant to s. 426(1A) of the Act.
The Applicant has not persuaded me that the Tribunal proceeded other than in a legally reasonable way or that its decision was otherwise affected by any other jurisdictional error. Ground 1 has little or no prospects of success such that it is not in the interests of the administration of justice to extend time. The Applicant has also not persuaded me that there is underlying merit to her contention that the Tribunal did not accord her procedural fairness such that I should grant an extension of time (Ground 2).
Because the Applicant’s underlying claim has little or no prospects of underlying success it is not in the interests of the administration of justice to extend time. In addition, the Applicant has not provided any satisfactory reason for her long delay in bringing her application.
I will refuse the application for an extension of time. My reasons follow.
Evidence
On the application I received a Court Book (CB) into evidence [Ex. CE1]. The Applicant read her affidavit made on 24 January 2018 in support of her application for an extension of time.
BACKGROUND AND PROCEDURAL HISTORY
The Applicant arrived in Australia on 25 October 2015 on an Electronic Travel Authority visa (CB41).
On 22 January 2016, the Applicant applied for a protection visa (CB1–35). As set out above, the Applicant claimed that she would face persecution if she returned to Malaysia because of “my status as a gay person [and that] society can’t accept my appearance as a woman” (CB30–32).
On 1 April 2016, a delegate of the First Respondent refused to grant the Applicant a protection visa. The delegate did not apparently interview the Applicant but proceeded on the basis of the Applicant’s written protection visa application.
On 5 April 2016, the Applicant applied to the Tribunal for a merits review of the delegate’s decision (CB52–58). On her application, the Applicant requested that the Tribunal send correspondence to an email address she nominated (CB55).
On 1 August 2016, the Applicant sent an email from the email address she had nominated to the Tribunal: “[…] I would like to check on my current status regarding the visa application as I still have not received any reply or feedback […] I would like to inform [you]… on the changes of my current correspondence.” The Applicant provided a new residential address and a mobile number. Her email address was unchanged from the email address she had previously nominated (CB62). On 10 August 2016, the Tribunal replied to the Applicant via email that the case had not yet been allocated to a Tribunal member (CB63).
On 11 November 2016, the Tribunal — by email to the nominated address — invited the Applicant to appear before it to give evidence and present arguments for a hearing scheduled on 15 December 2016 (CB64–66).
On 8 and 14 December 2016, the Tribunal’s case notes record that it sent two SMS hearing reminders to the Applicant’s mobile telephone number (CB71).
On 15 December 2016, the Applicant did not appear before the Tribunal at the scheduled hearing. The Tribunal’s hearing record sets out that the Applicant was a “no-show” (CB72).
Tribunal decision
On 16 December 2016, the Tribunal affirmed the decision of the delegate and provided written reasons (CB77–85).
The Tribunal’s reasons recorded that the Applicant did not appear at the scheduled hearing (CB78, [5]).
The Tribunal set out the Applicant’s claims outlined in the protection Visa application including (CB79, [17]).
He left Malaysia because he was being pressured by society and the religious department because of his status as a gay person and society cannot accept his appearance as a woman.
[…]
The Tribunal found that despite the invitation sent by email and two SMS reminders, the Applicant failed to respond the invitation, failed to appear before the Tribunal at the hearing and failed to contact the Tribunal to seek a postponement of the hearing or provide any explanation as to her non-attendance (CB80, [23]).
Pursuant to s. 426A of the Act, in the Applicant’s absence, the Tribunal exercised its discretion to determine the matter on the available evidence (CB80, [23]).
Tribunal’s Consideration
The Tribunal noted that it had sent a hearing invitation to the Applicant and SMS reminder messages: (CB80, [21], [22]).
Having decided to proceed on the basis of the evidence before it, the Tribunal found that it had not reached the requisite level of satisfaction for the purposes of ss. 36(2) and 65 of the Act to grant the visa. As to the “requisite level of satisfaction” it referred to the decision in BZADA v Minister for Immigration and Citizenship [2013] FCA 1062, [21] (CB81, [29]). It held:
32.Fundamentally, given the applicant did not attend the scheduled hearing, the Tribunal is not satisfied that the applicant is homosexual, transgender or of female appearance.
33.It follows that the Tribunal is not satisfied that the applicant has experienced harm in the past, or that he would be at risk of experiencing harm in the future, due to being a homosexual, transgender or of female appearance.
On 16 December 2016 the Tribunal affirmed the delegate’s decision to refuse the protection visa.
JUDICIAL REVIEW APPLICATION
The Applicant made her judicial review application on 25 January 2018 approximately one year out of time: Cf. the 35 day time limit in s. 477(1) of the Act.
The Applicant set out the following grounds for an extension of time:
1.There are reasonable reasons for the delay which are set out in the accompanying affidavit.
2.There is no prejudice to the Respondents.
3.The impact on the applicant weighs in favour of granting an extension.
4.It is in the interests of justice to grant the extension.
The Applicant pressed two grounds for judicial review which she stated in very broad terms as follows:
1.The decision of the Tribunal:
a.is affected by an error of law; and
b.denied the applicant procedural fairness.
2.The applicant has applied for a grant of legal assistance from Victoria Legal Aid and is awaiting a decision.
The Applicant’s affidavit
Besides her affidavit dated 24 January 2018 (details of which I refer to below), despite Court orders the Applicant did not file any written submissions in support of her application for an extension of time.
In her affidavit dated 24 January 2018, the Applicant deposed that that she is “illiterate and do[es] not speak English” (CB93, [6]). She deposed that when the delegate refused the visa application, the Applicant’s friend applied to the Tribunal for merits review on the Applicant’s behalf. The Applicant says that she relied on her friend and that she did not know that she had made a Tribunal application (CB93, [8]). The Applicant did not know that she was required to appear before the Tribunal (CB93, [9]). She deposed that, in April 2016, she relocated to South Australia for work, and did not receive any of the correspondence from the Tribunal as to the hearing notification (CB93, [10]). The Applicant did not update her details with the Tribunal as she did not know she had applied to the Tribunal (CB93, [12]). She deposed that in March 2017 “the Department told me that my application was refused and that I had seven days to depart the country” (CB93, [15]). She was terrified of being sent home to Malaysia but her friends told her there was nothing she could do because her application had been refused. She says that she did not know that she had the right to seek review of the decision of the Tribunal (CB94, [16]). In approximately December 2017, she found out about the Asylum Seeker Resource Centre and was informed that she could seek review of the Tribunal’s decision but that she was out of time to do so (CB94, [18]–[19]). The Applicant requested that the court grant an extension of time “on account of my difficulties with the English language and my lack of understanding about my legal rights and the progress of my application” (CB94, [21]).
Should the court grant an extension of time?
Under s. 477(2) of the Act, the Court may extend the 35 day period “if it is satisfied that it is necessary in the interests of the administration of justice to make the order.” So framed, the Court “is allowed to look at a myriad of facts and circumstances, including the length of the applicant’s delay, reasons for the relay, prejudice to the respondent … and the merits of the underlying application”: Tu’uta Katoa v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 178 ALD 573, [2022] HCA 28, [12].
“…It will seldom be in the interests of the administration of justice to grant leave [for an extension of time] where an appeal has little or no prospects of success…” MZABP v. Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391,[62]
In this case, the proposed application has little or no prospects of success and therefore I will refuse the application for an extension of time.
The Applicant’s generic grounds are unparticularised and it is difficult to engage meaningfully with them.
Ground 1(a): is the Tribunal’s decision is affected by an error of law
I see no jurisdictional error in the Tribunal’s approach.
The Tribunal complied with the requirements of Division 4 of Part 7 of the Act as to its invitation to the scheduled hearing. It sent an invitation to the Applicant to appear to give evidence and present arguments in accordance with s. 425. It sent the invitation by email to the last email address the Applicant herself had provided in compliance with s. 441A(5). Despite her evidence in her subsequent affidavit, the Applicant gave no indication to the Tribunal that any person was acting on her behalf. Section 441C(5) is a deeming provision which provided that the Applicant was “taken to have received the document [i.e., the hearing invitation email] at the end of the day on which the document is transmitted”. The Applicant has not presented any submission to me that overcomes (or has prosects of success in overcoming) the effect of s. 441C(5). To the extent that the Applicant submits that she received the Tribunal’s communications but did not understand them (which appeared to be the position she adopted in oral submissions before me) the Tribunal at least twice before the scheduled hearing notified the Applicant that language assistance was available to her (CB61, CB68). Further, although the statute did not require it, the Tribunal sent two SMS reminders to the Applicant before the scheduled hearing (CB71).
The Tribunal met its statutory obligations under sections 425 and 425A of the Act. The Tribunal was then permitted to engage s. 426A and had a discretion to make a decision on the review without taking any further action to allow the Applicant to appear before it, as it did: see, Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR541; [2018] HCA 30, [119]. It was reasonably open to the Tribunal to exercise its discretion under s. 426A to proceed on the evidence before it and not take further action to allow or enable the Applicant to appear before it.
The Tribunal applied the relevant legislative criteria as to the grant or refusal of a protection visa in considering the Applicant’s claim both as to the Refugee Convention reasons and under the complementary protection regime.
The Tribunal considered all aspects of the Applicant’s claim and the evidence before it.
It was reasonably open to the Tribunal to reach the conclusion it did having regard to the requirement that it reach a “requisite level of satisfaction” as to the statutory criteria for the grant of a visa before it granted the visa and that it could not reach that requisite level of satisfaction given that the Applicant had not attended the scheduled hearing (CB81, TD32). It expressly referred to a relevant authority as to reaching the requisite level of satisfaction in BZADA, [21].
Ground 1(b): Did the Tribunal deny the Applicant procedural fairness?
The Applicant has not put any submission to me that she has any real prospects of success in her underlying application that the Tribunal did not comply with its procedural fairness obligation. I repeat that the Tribunal complied with its statutory requirements of procedural fairness set out above.
Ground 2: Legal assistance
Under Ground 2, the Applicant states that she is seeking legal advice. She does not refer to any error of the Tribunal’s decision to support the granting of an extension of time.
Other Issues
Although I will refuse an extension of time because the underlying application lacks merit and it is therefore strictly unnecessary to consider the explanations put forward for the delay in bringing the application, I find that the Applicant has not provided a satisfactory explanation for her delay.
The Tribunal’s decision was made on 16 December 2016. On 19 December 2016, the Tribunal notified the Applicant of its decision in accordance with s.430A of the Act (CB75).
The application for judicial review was only filed on 25 January 2018. The length of delay was inordinate.
Making due allowance for the fact that the Applicant is illiterate, speaks no English and is self-represented, she has provided no satisfactory reason for her apparent inaction for 9 months between approximately March 2017 (when she learned her application had been refused) and December 2017 when she first took active steps preparatory to her application.
The Applicant (among other matters) claimed that she “did not know that I had the right to seek review of the decision of the Tribunal” (CB94, [17]). The fact that a litigant is ignorant of the timeframe for lodging an application is generally not a satisfactory explanation for the delay: MZZYV v Minister for Immigration and Border Protection [2016] FCA 956, [25].
There is no claimed prejudice to the First Respondent but “the mere absence of prejudice is not sufficient” to warrant an extension of time: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86, [6]. I acknowledge that the denial of an extension of time has a substantial impact on the Applicant.
CONCLUSION
The application for an extension of time is dismissed. I will order that the Applicant pay the First Respondent’s costs fixed in accordance with the relevant scale in the sum of $4,189.38.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 4 December 2023
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