AKQ21 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 202
•17 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AKQ21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 202
File number: MLG 264 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 17 February 2025 Catchwords: MIGRATION – application for review of decision made by Registrar to summarily dismiss judicial review application – where Tribunal found that it did not have jurisdiction to conduct review – where application for review made out of time – where no adequate explanation for delay – where there is no reasonable prospect of success of judicial review application – extension of time refused with costs Legislation: Federal Circuit and Family Court of Australia Act2021 (Cth), ss 143, 254, 256
Migration Act 1958 (Cth), ss 56, 412, 476, 494C
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth), rr 13.13, 21.01, 21.02, 21.03
Migration Regulations 1994 (Cth), reg 4.31
Cases cited: DZAFH v Minister for Immigration [2017] FCCA 387
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176
Minister for Immigration and Border Protection v ASE15 (2016) 237 FCR 460; [2016] FCAFC 37
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of last submissions: 17 February 2025 Date of hearing: 17 February 2025 Place: Melbourne Solicitor for the Applicant: The applicant represented herself Solicitor advocate for the First Respondent: Mr Sathiendrakumar, Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 264 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AKQ21
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
17 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application for an extension of time to review the decision made by a Registrar filed on 31 December 2024 be dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $1,000.
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 SYMONS:
INTRODUCTION
By way of application filed on 31 December 2024, the applicant seeks review of a decision made by a Registrar of this Court, pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act). On 4 December 2024, a Registrar summarily dismissed the principal application, which sought judicial review of a decision made by the second respondent (Tribunal) to affirm a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (subclass 866) visa (visa).
The application was filed outside of the prescribed seven-day timeframe provided by r 21.02 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (Rules). As a result, the applicant requires an extension of time to prosecute her review application.
For the reasons below, I have decided not to grant the applicant an extension of time to review the Registrar’s decision.
BACKGROUND
The applicant is a citizen of Malaysia who arrived in Australia on 15 September 2019 as a visitor.
On 20 November 2019, the applicant lodged an application for the visa (Court Book (CB) 1-29). The applicant identified that the reason for leaving Malaysia and seeking protection was due to alleged physical and mental violence perpetrated by her husband against her.
On 31 December 2019, the Department of Home Affairs (Department) acknowledged that the applicant had made a valid application for the visa.
On 21 September 2020, the Department sent the applicant a request made pursuant to s 56 of the Migration Act 1958 (Cth) (Act) for more information to substantiate her protection claims (CB 39-46). The applicant did not provide any response to this request.
On 5 November 2020, a delegate of the Minister refused to grant the applicant the visa (CB 47-55). The application was refused on the basis that the applicant’s claims lacked substantiating details and documentary evidence. The delegate was not satisfied that the applicant’s claims were credible.
The decision of the delegate was sent to the applicant via email. The covering letter contained a statement about the applicant’s review rights, including that an application for merits review “must be given to the Administrative Appeals Tribunal within the period of 28 calendar days, commencing on the day you are taken to have received this letter. As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted”.
The letter also informed the applicant that the time for lodging an application to the Tribunal was prescribed by law and could not be extended.
On 20 December 2020, the applicant lodged an application to the Tribunal for review of the delegate’s decision (CB 56-62). The application attached a statement which acknowledged that the application for review was lodged outside of the prescribed time and offered an explanation for why this was the case, namely, that lockdown restrictions meant that the applicant could not afford to buy a new phone and could not access her friend’s phone or computer to access email. After the restrictions had eased, the applicant had discovered that her application for the visa had been refused (CB 63).
On 21 December 2020, the Tribunal acknowledged the applicant’s review application (CB 65-66).
On 5 January 2021, the Tribunal sent the applicant an invitation to comment on the validity of her application for review in circumstances where it was not lodged within the relevant time prescribed by reg 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations) (CB 67-69). The applicant was invited to make any comment in writing by 19 January 2021. The applicant did not provide any response.
THE DECISION OF THE TRIBUNAL
On 28 January 2021, the Tribunal made a decision that it did not have jurisdiction to determine the applicant’s review application and prepared a brief set of reasons (CB 72-75). The decision reflected the following considerations:
·The applicant was not in immigration detention on the day she was notified of the decision so that the application for review had to be made within 28 days commencing on that day: reg 4.31(2) of the Regulations.
·Material before the Tribunal indicated that the applicant was notified of the decision by letter dated 5 November 2020 and dispatched by email. The Tribunal found that the notification was in accordance with statutory requirements.
·The applicant was taken to have been notified of the decision on 5 November 2020 (s 494C of the Act) so that the prescribed period to apply for the review ended on 2 December 2020.
·The Tribunal wrote to the applicant by email to advise her that her application may not be valid, referring in that correspondence to reg 4.31(2) and DZAFH v Minister for Immigration [2017] FCCA 387.
·The applicant was invited to comment on the validity of the application and by her response, advised that the COVID-19 lockdown restricted her access to devices that would allow her to access emails.
·The Tribunal acknowledged that the lockdown had caused difficulties for many people but found, where the Tribunal had no discretion to allow a review application that was lodged out of time to be recognised as a valid application, that the Tribunal did not have jurisdiction in the matter.
The applicant was notified of the Tribunal decision by email sent on 29 January 2021 (CB 71).
PROCEEDINGS IN THIS COURT
On 18 February 2021, the applicant filed an application under s 476 of the Act seeking judicial review of the Tribunal’s decision. The applicant raised the following grounds of application:
1. The interest of the applicant is affected by the decision given by the Administrative Appeals Tribunal (“AAT”) on 28 January 2021.
2. The Respondent/s acted without or in excess of jurisdiction, and/or identified a wrong issue, asked wrong questions, relied on irrelevant material or ignored relevant material.
3. The Applicants were denied natural justice.
4. The Second Respondent failed to review and consider the Application for a Protection (Subclass 866) (Class XA) Visa as per the Migration Act.
In an amended response filed on 7 November 2024, the Minister sought an order that the application be dismissed pursuant to r 13.13 of the Rules. The application was listed for this purpose before a Registrar on 4 December 2024 and informed by an outline of submissions filed by the Minister on 18 November 2024. The applicant did not file any further material despite being given opportunities to do so.
On 4 December 2024, a Registrar made a decision to summarily dismiss the applicant’s judicial review application pursuant to r 13.13(a) of the Rules, on the basis that the applicant had no reasonable prospect of prosecuting the proceeding. The Registrar made this decision exercising delegated power pursuant to s 254 of FCFCOA Act: see also item 58 in r 21.01 of the Rules.
On 31 December 2024, the applicant filed an application for review of the Registrar’s decision.
LEGISLATION AND PRINCIPLES RELEVANT TO APPLICATIONS FOR REVIEW
Section 256(1) of the FCFCOA Act allows a party to a proceeding in which a delegate has exercised the powers of the Court under s 254 to apply to the Court for a review of the exercise of that power. The application for review must be made within the time prescribed under the Rules or within any further time allowed in accordance with the Rules. The time limit prescribed by r 21.02(1) of the Rules is seven days. Rule 21.02(2)(a) allows the Court to extend this time frame on any terms it thinks fit.
Rule 21.04 provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. Accordingly, I am required to conduct what is effectively a re-hearing of the Minister’s application for summary dismissal.
The review application was listed before me on 17 February 2025 on which occasion the applicant appeared in person and was assisted by an interpreter in the English and Malay languages. The Minister was represented by solicitor advocate, Mr Sathiendrakumar. The Minister continued to rely on his submissions that were before the Registrar as well as a set of brief written submissions on the review filed on 13 February 2025. The applicant did not file any further material, beyond the application document and supporting affidavit which contained statements that did not engage with the decision in fact made by the Tribunal.
EXTENSION OF TIME APPLICATION
Relevant considerations
The principles that apply to whether the Court should grant an extension of time are well-established: see, for example, Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344. In deciding whether to grant an extension of time, the Court will commonly have regard to considerations such as the length of the delay, whether the applicant has a reasonable explanation for the delay, any prejudice to the respondent or third parties and the merits of the underlying application.
Length of delay
In this case, the Registrar’s decision was made on 4 December 2024 and the seven-day prescribed time frame to seek review of that decision ended on 11 December 2024. The application for review was filed on 31 December 2024, being 20 days out of time. A delay of 20 days may not be excessive, but it is not insignificant when viewed in the context of a prescribed time frame for lodging of only seven days and a review regime that requires reviews, once filed, to be listed for hearing, as soon as possible and unless it is impracticable to do so, within 14 days after the date of filing: r 21.03(2) of the Rules.
Explanation for the delay
The applicant offered no explanation for the delay in filing her review application. Indeed, it seems that her application was filed in ignorance of the legislated timeframe. At hearing, when the applicant was given the opportunity to explain the delay, she repeated the explanation given to the Tribunal. The Minister submitted that the applicant’s response was inadequate and emphasised the responsibility of a review applicant to ascertain their review rights and applicable time limits.
I do not consider that the applicant has provided any or any adequate explanation for her delay. This is a consideration that weighs against the grant of an extension of time.
Prejudice
The Minister has not claimed any prejudice as a result of the delay, and I do not consider that the Minister would face any prejudice as a result of the delay in filing the application for review. However, the mere absence of prejudice alone does not justify the grant of an extension of time: Hunter Valley Developments at 349.
Merits: whether the applicant has a reasonably arguable case
I then turn to the merits of the underlying application. I note at the outset that when asked to identify what was wrong with the decision of the Tribunal, the applicant said there had been “no mistake”. In the context of considering an extension of time to seek review of the Registrar’s decision, the underlying application is the application for review of the Registrar’s decision to summarily dismiss the applicant’s judicial review application. For the following reasons, the applicant does not have a reasonably arguable case to prevent summary dismissal of her judicial review application on a de novo review of the Registrar’s decision.
The Court has the power to summarily dismiss the application for judicial review if the applicant has no reasonable prospects of successfully prosecuting the application: see s 143(2)(b) of the FCFCOA Act and r 13.13(a) of the Rules. This necessarily directs attention to the applicant’s judicial review application.
Whether adjudged at a reasonably impressionistic level or more closely, it is apparent that the applicant’s judicial review application has no reasonable prospects of success.
The applicant’s proposed grounds of judicial review operate on the mistaken premise that the Tribunal had jurisdiction to undertake merits review of the decision of the delegate and performed that function. However, the Tribunal did not evaluate the merits of the applicant’s case because it found, correctly, that its jurisdiction to do so had not been engaged.
In this regard, I accept that the Tribunal was correct to find that the applicant had been taken to have received the decision of the delegate at the end of the day it was transmitted by email, being 5 November 2020, to the address that had been recorded in her visa application (s 494C(5) of the Act). It then followed that the applicant had a period of 28 days to apply to the Tribunal for review of the delegate’s decision meaning that the prescribed period for review ended on 2 December 2020 (s 412(1)(b) of the Act and reg 4.31(2) of the Regulations). The application was lodged on 20 December 2020 and was therefore outside the prescribed period. The Tribunal had no power to extend the review period and its finding that the application made by the applicant was invalid was unremarkable, indeed it was the only finding available to the Tribunal.[1]
[1] See, Minister for Immigration and Border Protection v ASE15 (2016) 237 FCR 460 at [48]
The applicant’s proposed grounds of review refer to a denial of natural justice. It can be said, to the extent that obligations of procedural fairness arose, that the applicant was given unambiguous information concerning the 28-day period that applied to the lodging of applications to the Tribunal and that the period was applied strictly. The applicant was also given the opportunity to provide information in writing to redress the Tribunal’s concerns that her application was invalid, for reasons that were identified for her.
Balance of extension of time facts
Overall, I am not satisfied that it is appropriate to grant the extension of time sought by the applicant to seek review of the Registrar’s decision. The applicant has failed to offer an explanation for a delay that is not insignificant in length in the context of the statutory review scheme that promotes the efficient disposition of review cases. Furthermore, there is no realistic prospect of the Court finding that the applicant has any reasonable prospect of success in her judicial review application.
ORDERS
For these reasons it is appropriate that I dismiss the application for an extension of time and make orders that the applicant pay the Minister’s costs in a fixed amount.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 17 February 2025
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