Ajw22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1147
•6 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AJW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1147
File number(s): SYG 196 of 2022 Judgment of: JUDGE LAING Date of judgment: 6 December 2023 Catchwords: MIGRATION – application for an extension of time for applying for judicial review of a decision by the Administrative Appeals Tribunal – relevant principles – whether the extension of time ought to be granted – application dismissed Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 425, 425A, 426, 426A, 426B, 441A, 441C, 441G, 476A and 477
Migration Regulations 1994 (Cth) r 4.35D
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1025; (2020) 279 FCR 212
Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 100 ALD 443
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 237 ALR 64
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 13 October 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Mr C Bavin of Hunt & Hunt Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 196 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AJW22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application for an extension of time be 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 LAING:
Before the Court is an application seeking an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal confirmed its decision to dismiss an application made to it for review of a decision of a delegate (Delegate) of the first respondent (Minister). By that decision, the Delegate had refused to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
BACKGROUND
The applicant is a citizen of the People’s Republic of China (China). On 16 July 2017, the applicant applied for a protection visa.
The applicant was invited to attend an interview scheduled on 19 December 2017, which was not attended by the applicant.
On 22 December 2017, the Delegate refused to grant the protection visa.
The applicant then lodged an application for review with the Tribunal on 7 January 2018. The Tribunal invited the applicant to a hearing, by email sent to his authorised recipient. The applicant did not attend the hearing, scheduled on 28 April 2021.
The Delegate dismissed the application for non-appearance on 29 April 2021, of which the applicant was notified by email to his authorised recipient. The applicant did not apply for reinstatement within the prescribed period. The dismissal was confirmed on 14 May 2021.
THE TRIBUNAL’S DECISION
The Tribunal’s reasons for the dismissal decision were as follows:
1.The review applicant was invited under s 425 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal on 28 April 2021 at 2:00pm. The invitation stated that if he did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
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) and that the invitation has not been returned to sender. 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.
The Tribunal gave the following reasons for confirmation of the decision:
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 December 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).
2.On 29 April 2021, the Tribunal dismissed the application under s 426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s 426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.As the applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
PROCEEDINGS IN THIS COURT
The applicant filed an application with this Court on 9 February 2022 seeking judicial review, and an extension of time in which to seek review.
Extension of time application
The principles regarding applications for extensions of time have been considered in a number of cases, including BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (BTI15) and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 (Katoa).
The Court is required “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”: BTI15 [40] per Jagot and Halley JJ; see also Katoa at [12] per Kiefel CJ, Gageler J (as his Honour was), Keane and Gleeson JJ.
Whilst the matters to which regard may be had are not expressly confined by the Act, matters that may be relevant include the following:
(a)the extent of the delay and the explanation for it;
(b)any prejudice;
(c)the impact on the applicant if time is not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application: see BTI15 at [25]-[26] (per Logan J) and Katoa at [40] (per Gordon, Edelman, and Steward JJ).
Delay and explanation
Section 477(2) of the Act required that the application to this Court be made within 35 days of the date of the migration decision. As the relevant decision was dated 14 May 2021, the application needed to be made no later than 18 June 2021 in order to be made within time. The application to this Court was made on 9 February 2022, several months later. I accept the Minister’s submission that the delay was substantial.
The explanation given in the application for an extension of time was that the applicant “got AAT decision in January 2022”. The applicant does appear to have been sent a copy of the decision in January 2022, after he emailed the Tribunal notifying a new email address. However, both the dismissal and confirmation decisions had been sent, earlier, to the address nominated for the applicant’s authorised recipient.
At the hearing, the applicant was permitted to give oral evidence that he had understood that his authorised recipient was a “middle man” for an agent and that he had lost contact with this person, after paying them some money, and had received no correspondence from the Tribunal. This account was not challenged in cross examination.
It may be, as was submitted by the Minister, that this explanation is not entirely satisfactory. This is in circumstances where the applicant was responsible for providing viable contact details to the Tribunal and delayed for a considerable period before following up on the status of his application in January 2022. However, I accept that the applicant’s evidence goes some way towards explaining his delay in applying to this Court.
In any event, even if I had been satisfied by the applicant’s explanation, the extension of time in this matter would have been refused. This is on account of what I have found in relation to the merits of the proposed application, which are considered below: see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23].
Prejudice, the public interest and impact upon the applicant
I do not place significant weight upon the issue of prejudice in this case, in the absence of any specific prejudice being identified by the Minister.
There is a public interest in ensuring that administrative decisions are made lawfully. Relevant to this will be the merits of the substantive grounds relied upon, which are considered further below. 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; (2000) 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, with all the consequences that follow for his protection visa application. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act, although an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth): see BTI15 at [4] per Logan J.
Merits of proposed grounds
The application filed by the applicant contained the following grounds:
Tribunal 's action is not just and fair.
1.Tribunal dismissed my review application because I did not appear in the hearing. But Tribunal did not consider relevant material to check if I met legal requirements for protection.
2. Tribunal did not set out its finding and reasons for rejecting my claims.
3. Tribunal did not consider the possibility that I will be harmed in China.
At the hearing, the applicant confirmed that the intended meaning of the grounds was that it was unjust and unfair for the Tribunal to have dismissed his application without determining his claims for protection and providing reasons for this in its decision.
However, as I explained at the hearing, the Tribunal in this case dismissed the applicant’s case for non-appearance and subsequently confirmed that dismissal when no reinstatement application was made. If the Tribunal’s approach in this regard was not attended by relevant error, then the Tribunal was not generally bound to consider or determine the merits of the applicant’s protection claims: FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1025; (2020) 279 FCR 212 at [36] per Nicholas J.
A question, then, is whether the Tribunal fell into any relevant error in making its decisions under ss 426A(1A) and/or 426(IE) of the Act. A significant focus of the Minister’s oral and written submissions was directed towards explaining why the Minister considered that the Tribunal’s decision was not affected by any relevant error in this regard. I assured the applicant that I would also undertake my own assessment of whether or not the approach taken by the Tribunal complied with the legislative requirements. I have done so.
Section 426A(1A) provided that, in the event of non-appearance by an applicant at a hearing to which they were invited under s 425 of the Act:
(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…
The applicant was invited to a hearing before the Tribunal pursuant to s 425 of the Act. I accept the Minister’s submission that this invitation complied with s 425A of the Act in that it:
(a)informed the applicant of the date, time and place of the scheduled hearing: s 425A(1) of the Act;
(b)was sent to the last email address provided to the Tribunal by the applicant in connection with the review: ss 425A(2), 441G and 441A(5) of the Act;
(c)gave a period of notice that was more than the prescribed period of 14 days: s 425A(3) of the Act and r 4.35D of the Migration Regulations 1994 (Cth); and
(d)contained a statement as to the effect of s 426A of the Act, referring to the consequences of non-appearance at the hearing: s 425A(4) of the Act.
The applicant was taken to have received the invitation on account of s 441C(5) of the Act, whether or not he actually received the invitation.
As noted above, at the hearing the applicant gave evidence that he had lost contact with his authorised recipient, who had not communicated to him any correspondence that was sent by the Tribunal.
After this evidence was given, I allowed the applicant to return to the bar table and sought to explain legal principles that may be relevant where a person contends that their review before the Tribunal was affected by the conduct of a third party. I explained that in some cases, dishonest conduct on the part of a third party may result in a fraud on the Tribunal, resulting in the stultification of its processes. This may provide a basis for setting aside the Tribunal’s decision: see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 237 ALR 64 (SZFDE) at [51] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ). However, I observed that I did not understand this to be what was being alleged by the applicant. Rather, the applicant appeared to contend that his authorised recipient did not do what he was supposed to do for reasons that were unknown. I observed that there is also authority to the effect that mere negligence or failure to inform, without more, is incapable of providing a basis for setting aside the Tribunal’s decision: see SZFDE at [53] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ) and Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 100 ALD 443 at [30]-[33] per Tamberlin, Finn and Dowsett JJ.
The applicant was asked, having regard to the legal principles that had been identified, whether he sought an opportunity to put any further evidence before the Court. The applicant did not seek that opportunity. There is nothing to establish, even propositionally, a case that the authorised recipient’s conduct involved dishonesty or fraudulent behaviour, as distinct from negligence, miscommunication, or some other form of misadventure. Therefore, I am not satisfied that what was said by the applicant establishes an arguable ground of judicial review.
I have considered whether the Tribunal acted reasonably in exercising its discretion to dismiss the application: see Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332 at [76] per Hayne J, Kiefel J (as her Honour was) and Bell J. I accept the Minister’s submission that the Tribunal’s decision could not arguably be said to have been legally unreasonable in circumstances where there was nothing in the materials to alert the Tribunal to the applicant’s non-appearance being out of character or amiss, noting that the applicant had not engaged in correspondence with the Tribunal and had not attended the interview before the Delegate: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [121] per Nettle and Gordon JJ and [141] per Edelman J. The Tribunal’s reasons for the dismissal decision provided an evident and intelligible justification for that decision. Those reasons included that the applicant had been correctly notified of the hearing by correspondence that forewarned the consequences of non-attendance, there was no indication that the applicant had not received the correspondence, and no satisfactory reason had been provided for the non-attendance.
The applicant was notified of the decision to dismiss his application at the nominated email address for his authorised recipient. The applicant was taken to have received the notification on 29 April 2021 due to the application of s 441C(5) of the Act, whether or not he actually received it. The notification complied with the requirements of ss 426B(5) and (6) of the Act. It was notified by one of the methods specified in s 441A of the Act on the day of the dismissal decision. It attached the dismissal decision, invited the applicant to apply for reinstatement within 14 days and described the effect of ss 426A(1B) to (1F) of the Act.
In these circumstances, s 426A(1E) of the Act provided:
(1E)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.
The applicant did not apply for reinstatement within 14 days. There is therefore no arguable basis for finding that the Tribunal relevantly erred in its confirmation of the dismissal.
CONCLUSION
Taking into account the above considerations, I am not satisfied that it is necessary in the interests of the administration of justice that time be extended in this matter. I am therefore obliged to dismiss the application before the Court.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 6 December 2023
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