Aki17 v Minister for Immigration and Border Protection
[2018] FCA 741
•7 May 2018
FEDERAL COURT OF AUSTRALIA
AKI17 v Minister for Immigration and Border Protection [2018] FCA 741
Appeal from: Application for extension of time:AKI17 v Minister for Immigration and Border Protection & Anor [2017] FCCA 2917 File number: NSD 1969 of 2017 Judge: BURLEY J Date of judgment: 7 May 2018 Catchwords: MIGRATION – protection visa application – whether the Tribunal was empowered to dismiss the application for non-appearance which was upheld by the Federal Circuit Court of Australia – no jurisdictional error found – application dismissed Legislation: Migration Act 1958 (Cth) s 426
Federal Court Rules 2011 (Cth) r 36.03
Cases cited: Singh v Minister for Immigration and Border Protection [2017] FCA 530 Date of hearing: 7 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms D Watson of Australian Government Solicitors Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS
NSD 1969 of 2017 BETWEEN: AKI17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
7 MAY 2018
THE COURT ORDERS THAT:
1.The application for an extension of time be refused.
2.The Applicant pay the First Respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Revised from TranscriptBURLEY J:
1. Introduction
Before the Court is an application for an extension of time to file a notice of appeal from a decision of the Federal Circuit Court of Australia (FCCA) made on 17 October 2017. The notice of appeal was required by rule 36.03 of the Federal Court Rules 2011 (Cth) (FCR) to be filed by 7 November 2017. The current application was filed three days later, on 10 November 2017. Ordinarily a small delay such as this might be considered to be sufficiently slight to warrant the grant of the extension sought, particularly where, as in the present case, the applicant is self-represented and does not appear to have the benefit of legal assistance. However, for the reasons below in my view the application should be refused.
The decision of the primary judge records the events leading to the present hearing, as set out below.
The applicant arrived in Australia on 3 January 2013 and lodged an application for a protection visa (Visa) on 7 May 2014. He was invited to attend an interview conducted by an officer of the Department of Immigration and Border Protection (Department), but failed to do so. On 9 February 2015 a delegate of the Minister of the Department (delegate) made a decision to refuse to grant the Visa.
The applicant then applied to the Refugee Review Tribunal (known now as the Administrative Appeals Tribunal) (Tribunal) for a review of the decision of the delegate. In that application the applicant requested that correspondence be sent to him at a specified post office box. On 17 November 2016 the Tribunal wrote a letter addressed to the applicant inviting him to attend a hearing to be conducted on 15 December 2016. The applicant did not attend the hearing. The Tribunal wrote a further letter to the applicant on 16 December 2017 stating that as he failed to attend the hearing it has decided to dismiss his application for review. A copy of the statement of decision was attached together with an information sheet about dismissal applications. The letter noted (emphasis in original):
You may apply to us, in writing, for reinstatement of the application by 12 January 2017….
The applicant did not respond to the letter and made no application for reinstatement. On 13 January 2017 the Tribunal gave reasons indicating that it had dismissed the application pursuant to s 426(1A)(b) of the Migration Act 1958 (Cth) (Act). On 16 January 2017 the Tribunal wrote to the applicant and informed him that the decision to dismiss his application was confirmed, and enclosed a statement of reasons for the decision.
The applicant then applied to the FCCA for orders quashing the decision of the Tribunal. He represented himself at the hearing, which was conducted on 17 October 2017. After considering the six grounds advanced by the applicant, the learned primary judge dismissed the application.
2. Consideration of the present application
The present application is supported by an affidavit given by the applicant in which he states that he disagrees with the decision of the FCCA and that he applies to this Court for a “more fair decision”. The applicant states that he delayed his appeal application because of financial hardship in raising the application fee, which he was unable to afford within 21 days from the decision, and because he could not get help in filling out all of the forms due to his limited command of English.
Section 426A of the Act applies if, inter alia, a visa applicant has been invited to attend a hearing before the Tribunal but does not attend. It provides that in such a case the application may be dismissed by the Tribunal by written statement under s 426B without any further consideration of the application or information before the Tribunal; s 426A(1A)(b). This the Tribunal did. Although a dismissal for non-appearance may not be varied or revoked after the day upon which it is issued (s 426B(4)), provisions exist for the reinstatement of applications that have been dismissed in this manner. If reinstated, the application is taken never to have been dismissed (s 426A(1D)(a)). However, these provisions are attended by strict time limits with which the applicant did not comply.
Section 426A(1B) allows an applicant, whose application has been dismissed for non-attendance at a hearing, to apply to have it reinstated, but only if this is done within 14 days of receiving notice of the Tribunal’s decision to dismiss the application. If an applicant does not apply within that 14 day window the Tribunal must ‘confirm’ the decision: s 426A(1E). The effect of the confirmation is to deem the decision under review as having been affirmed: s 426A(1F). Section 430A(1) provides that the Tribunal must then notify the applicant of its decision to confirm the dismissal of the primary application. However, failure to provide such notification does not affect the validity of the dismissal: s 430A(3).
These provisions made it important for the applicant to seek to reinstate his application within 14 days of being notified that it had been dismissed due to his non-attendance. He did not do so. Consequently, the Tribunal was obliged by s 426A(1E), to ‘confirm’ the decision. This it did, without any lawful ability to do otherwise, on 13 January 2017; see Singh v Minister for Immigration and Border Protection [2017] FCA 530 at [13], [14].
The applicant then sought judicial review of that decision in the FCCA. However, since the applicant had not sought to reinstate the application within 14 days of being notified of it, this was an argument which could not succeed. Judge Smith of the FCCA correctly held that this was so. Furthermore, the learned primary judge considered separately each of the individual grounds upon which the applicant relied. The grounds were formulaic and two (part of ground 3 and ground 5 in particular) were not responsive to the Tribunal’s decision but appear to have been drafted with another decision in mind.
The draft notice of appeal appended to the present application raises matters that are irrelevant to the statutory scheme set out by s 426A. In it the applicant contends that the FCCA and the Tribunal failed to consider his explanation. He states that he is a Chinese citizen who faces persecution by the Chinese Government due to his beliefs and church activities, and states that he cannot go back to China since he is very scared to be sentenced and discriminated against. The applicant contends that the Tribunal and the FCCA did not consider his fear of persecution if he returns to his home country.
None of these matters provide a basis upon which it might be said that the tribunal erred in making its decision nor the FCCA erred in upholding it. In particular, none addresses the statutory scheme specified under s 426A or directs any aspects of an appeal towards that provision. Having regard to that statutory scheme and the reasons given by the learned primary judge, I am not satisfied that there is sufficient prospect that any appeal would succeed to warrant the grant of the extension of time sought in the present case.
The application for an extension of time must be refused. I order that the applicant pay the Minister’s costs of the application.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 7 May 2018
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