Amanullah v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 302
•6 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Amanullah v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 302
File number(s): MLG 575 of 2022 Judgment of: JUDGE BINGHAM Date of judgment: 6 March 2025 Catchwords: MIGRATION– application for review of registrar’s decision – extension of time of 17 days required – where Registrar dismissed the application for judicial review for nonappearance and then dismissed an application for reinstatement – Tribunal found no jurisdiction to review refusal of Business Innovation And Investment (Provisional) (Extension) (Subclass 188) visa – delay and lack of prospects of success of reinstatement application do not warrant an extension of time Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256
Migration Act 1958 (Cth) s 477
Migration Regulations 1994 (Cth) reg 4.10(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06, 17.05, 21.02 and 21.03
Cases cited: AVC19 v Minister For Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1752
Bahanko v Sterjov and Others [2008] FCAFC 30; (2008) 166 FCR 415
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
DHX17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475
FBS18 v Minister for Home Affairs [2019] FCAFC 196
FKV17 v Minister for Home Affairs [2022] FCAFC 93
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066
MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530
MZZGC v Minister for Immigration & Border Protection [2015] FCA 842
Newman & Tate [2020] FamCA 1114
Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of last submissions: 23 January 2025 Date of hearing: 23 January 2025 Place: Melbourne The Applicant: Appeared in person Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 575 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMANULLAH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
6 MARCH 2025
THE COURT ORDERS THAT:
1.Pursuant to r 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the application for an extension of time for the filing of the Application for Review of a Registrar’s decision, lodged on 9 January 2025, is refused and the Application for Review be otherwise dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $2,500.
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 BINGHAM:
This is an application to review a decision of a Registrar of this Court filed by the Applicant on 9 January 2025 (Application for Review). On 13 November 2024 the Registrar made an Order pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFLRules) dismissing the application for judicial review made by the Applicant for non-appearance. The Applicant subsequently sought reinstatement of his application for judicial review and on 16 December 2024 the Registrar made Orders dismissing the application for reinstatement. The Application for Review is opposed by the First Respondent (Minister).
BACKGROUND
The Applicant is a citizen of Pakistan. The Applicant applied for a Business Innovation and Investment (Provisional) (Extension) (Subclass 188) visa (Visa) on 8 May 2020. The Delegate of the Minister (Delegate) decided not to grant the Visa on 28 April 2021 (Delegate’s Decision). Also on 28 April 2021 an email was sent to the Applicant at his last known and nominated email address providing correspondence that included among other things, a copy of the Delegate’s Decision, reasons for the Delegate’s Decision and information regarding review rights.
On 28 October 2021 the Applicant applied for review of the Delegate’s Decision by the Administrative Appeals Tribunal (Tribunal). On 17 February 2022 the Tribunal found that it had no jurisdiction to review the Delegate’s Decision (Tribunal’s Decision). The Tribunal was satisfied that the letter dated 28 April 2021 notifying the Applicant of the Delegate’s Decision was sent to the Applicant’s nominated email address in accordance with s 494(B) of the Migration Act 1958 (Cth) (the Migration Act) and that the Applicant was deemed to have received the notification the same day and consequently the 28 day review period expired on 19 May 2021.[1] As the Applicant filed his Application for Review on 28 October 2021 the Tribunal had no jurisdiction to the Delegate’s Decision.
[1] Migration Act 1958 (Cth) (Migration Act) section 347(1)(b); Migration Regulations 1994 (Cth) reg 4.10(1).
The Applicant filed the Application for Judicial Review in this Court on 17 March 2022 (Initiating Application). The Initiating Application was accompanied by an Affidavit of the Applicant that annexed the written reasons for the Tribunal’s Decision. The Minister filed a Response on 30 March 2022.
The matter was listed for Callover before a Registrar on 13 November 2024. The Applicant failed to appear at the Callover and Orders were consequently made dismissing the Initiating Application for non-appearance pursuant to r 13.06(1)(c) of the GFL Rules.
On 6 December 2024 the Applicant filed an Application in a Proceeding seeking reinstatement of the Initiating Application (Reinstatement Application). The Applicant sought the following orders:
Hi sit I am amanullah. You finalised my case 13 the november. I was in the hospital because my heart problem therefore I could not join the call - my health was very serious I want to hearing review - kindly give me a chance to review. Thanks
On 16 December 2024 the Registrar dismissed the Reinstatement Application.[2]
[2] Amanullah v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1402.
On 9 January 2025 the Applicant lodged the Application for Review, which was not accepted by the Court for filing until 14 January 2025. The Applicant filed an affidavit in support.
On 17 January 2025 the Minister filed a response to the Application for Review seeking dismissal of the Application for Review together with costs. The Minister opposed an order granting an extension of time.
PRINCIPLES TO BE APPLIED
Review Power
Section 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides:
256 Review of power exercised by delegate
(1)A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Court for review of that exercise of power.
A review application is not an appeal. It is a hearing de novo where the Reinstatement Application is heard afresh. The review does not hinge or focus upon an error in the decision of the Registrar.[3]
[3] Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935, [39]; Newman & Tate [2020] FamCA 1114, [12].
Extension of time
Rule 21.02 of the GFL Rules provides that an application for review of a Registrar’s decision must be made within seven days of the exercise of a power by a Registrar. An application for review must be listed for hearing as soon as possible, and unless impractical to do so, within 14 days after the date of filing.[4]
[4] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 21.03.
The Registrar’s Orders were made on 16 December 2024. The last day of the prescribed time period for the Applicant to file the Application for Review was 23 December 2024. The Application for Review was lodged on 9 January 2025, 17 days outside the prescribed time for filing. Before hearing the Reinstatement Application afresh, in these circumstances, I must first determine whether I should exercise my discretion to grant the Applicant an extension of time where the Application for Review has not been filed within the prescribed time.
The Court has a broad discretion under r 21.02 of the GFL Rules to extend time for the filing of an application for review. It is well established that the following factors should be taken into account in determining whether it is in the interests of the administration of justice to extend time:
(a)the length of delay and whether there has been a reasonable and adequate explanation for it, noting that the weight of these factors in any given case can vary considerably: MZZGC v Minister for Immigration & Border Protection [2015] FCA 842 at [15];
(b)whether there is any prejudice to the Minister; and
(c)whether the applicant’s substantive grounds seeking judicial review justify the extension of time, noting that “[w]hether that standard of veracity is described as being ‘arguable’, ‘reasonably arguable’, or ‘sufficiently arguable’ or having ‘reasonable prospects of success’”, the hurdle is relatively low: DHX17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 127 at [76].
APPLICATION FOR REVIEW
In the Application for Review the Applicant sought a review of the Orders of the Registrar dated 16 December 2024. The relief sought by the Applicants was expressed in the following terms:
Details of orders sought to be reviewed
[…]
1.Orders Attached dated 16 Dec.2025
Orders sought
1.Order Federal Circuit and Family Court Decision
2.To see into my decision to restate my application.
On 16 January 2025 I made Orders listing the Application for Review for an Interlocutory Hearing and for the filing of a response from the Minister and an outline of submissions from each party. No outline of submissions was filed by the Applicant.
On 23 January 2025 the Application for Review came before me (Hearing). The Applicant appeared on his own behalf with the assistance of an Urdu interpreter. The Minister was represented by a Solicitor from Australian Government Solicitors.
The Application for Review did not seek an extension of time. At the Hearing I addressed the Applicant on the delay in the filing of the Application for Review and whether he wished to apply for an extension of time for the filing of the Application for Review. The Minister did not object to the Application for Review being amended. I made Orders permitting an amendment of the Application for Review consistent with the request made by the Applicant.
The Applicant relied upon:
(a)The Application for Review, as amended; and
(b)The Affidavit of the Applicant filed 9 January 2025.
The Minister relied upon;
(a)The Response filed 17 January 2025;
(b)The Minister’s submissions filed 13 December 2024 and 22 January 2025; and
(c)The list of authorities filed 22 January 2025.
At the Hearing I explained to the Applicant that for the purpose of dealing with the application for an extension of time I need to consider a number of factors which were set out in the Minister’s Submissions filed on 22 January 2025. As the Applicant had not filed submissions in accordance with my Orders I asked him to make oral submissions on each of the elements.
CONSIDERATION
The delay
I asked the Applicant what the reason for the delay was in filing the Application for Review to which he responded in words to the effect that he was unaware of the prescribed time and that he thought that he had 28 days. Again in response to an inquiry from me he said that he assumed that he had 28 days because that is the usual prescribed time for the Department of Home Affairs or other agencies.
The Minister submitted that the delay was relatively short but twice the period prescribed by the GFL Rules. The first occasion upon which the Minister had become aware of the Applicant’s reason for delay was at the Hearing. The Minister submitted that the Applicant’s ignorance of the time limitation was not a reasonable excuse and further the fact that the period to bring an application for review is so limited demonstrates the need for certainty and finality in the review and appeals process.
Being a litigant in person “brings no special privileges and cannot justify lack of proper attention to the interests of other parties. It provides no reason to permit procedural or other conduct outside the standards reasonably expected when a litigant exercises a right to access the Court and its process whether at first instant or on appeal”.[5] The standard that applies in this case is compliance with procedural rules to file an application for review within the seven days prescribed. I agree with the submission of the Minister.
[5] Bahanko v Sterjov and Others [2008] FCAFC 30; (2008) 166 FCR 415, [6].
The delay, but particularly the reasons for it, weigh against the grant of an extension of time.
Prejudice
The Minister submitted that no substantial prejudice would be occasioned by the grant of an extension of time however submitted that the mere absence of prejudice does not justify the granting of an extension of time. The only prejudice identified by the Applicant was to himself in respect to running his business.
Reasonable prospects of success of the Applicant’s application for reinstatement
If I were to grant an extension of time the substantive application before me would be an application for reinstatement. The Court has the power to set aside orders pursuant to r 17.05(2)(a) of the GFL Rules.
Importantly, I am to consider whether the application is “sufficiently arguable” to warrant the granting of an extension of time. The Court is to undertake an impressionistic examination of the grounds of review[6] and a closer examination of the merits is appropriate in some cases.[7]
[6] DHX17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475 (DHX17), citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP), [63] and [68].
[7] Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 (Tu’uta Katoa), [18].
The question before the Court is whether any of the grounds are ‘arguable’, ‘reasonably arguable’, ‘sufficiently arguable’, or have ‘reasonable prospects of success’. Whether or not to accede to a reinstatement application is a discretionary power. The Court must consider whether or not it is in the interests of justice to reinstate the application.[8]
[8] FBS18 v Minister for Home Affairs [2019] FCAFC 196, [50].
The factors relevant to the exercise of discretion to reinstate a matter are:[9]
(a)whether there is a reasonable excuse for the party’s absence;
(b)the existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated; and
(c)whether the application for reinstatement has a reasonable prospect of success in the substantive proceeding, with the grounds to be taken at an impressionistic level.[10]
[9] MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530, [7].
[10] MZABP, [62]; DHX17; FKV17 v Minister for Home Affairs [2022] FCAFC 93; Tu'uta Katoa; MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066.
The principles articulated in extension of time matters are relevant to reinstatement applications as the standard of assessment of merits is the same.[11]
[11] AVC19 v Minister For Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1752, [3]-[5].
Reasons for the failure to appear
The Minister submitted that the Applicant did not provide adequate reasons for his failure to appear at the Registrar’s callover on 13 November 2024.
The Minister submitted that the notice of listing for the callover at 2:30pm on 13 November 2024 was sent to the parties on 4 November 2024.[12]
[12] Affidavit of Chelsea Clarice Doyle filed 13 December 2024, Annexure “CCD1”.
At 11:00am on 13 November 2024 the Minister’s representative emailed the Applicant advising the Applicant that should he fail to appear at the callover an application would be made to dismiss his review application and that there may be an order with respect to costs.[13] The Applicant did not appear at the callover.
[13] Affidavit of Chelsea Clarice Doyle filed 13 December 2024, Annexure “CCD2”.
The Applicant submitted that he did not attend the callover due to his ongoing medical issues relating to his heart and on the day of the callover he had to attend the hospital. As evidence of these ongoing medical issues the Applicant provided the following in support of his reinstatement application: a referral from Dr Logan Poopalapillai to Casey Hospital Emergency Department dated 13 November 2024 and an ECG report from Our Medical Home Cranbourne which is time stamped “13/11 2024 8:06:03PM”.
The Minister submitted that the material upon which the Applicant relies does not demonstrate that the Applicant attended the Casey Hospital or any hospital for that matter, after receiving the referral and in addition the Applicant made submissions before the Registrar that he did not attend at a hospital because his symptoms had improved. It was further submitted by the Minister that the referral letter of Dr Poopalapillai does not state that the Applicant was unable to participate in a telephone hearing nor does it provide an explanation as to why this would be the case. It was also submitted by the Minister that I should have regard to the time stamp on the ECG report being 8:06:03PM on 13 November 2024 approximately 5 and a 1/2 hours after the listed time for the callover and a mere 42 minutes after the Applicant was notified by the Court of the Registrar’s Orders dismissing the Applicant’s Initiating Application.
I concur with the Minister’s submission, in the circumstances of this case, there is no adequate reason provided by the Applicant as to why he did not attend the callover on 13 November 2024.
Delay in filing the application for reinstatement
There was a 23 day delay in filing the Reinstatement Application. The Minister submitted that the Applicant did not provide an explanation for his delay in filing the reinstatement application.
On 14 November 2024 the Applicant contacted the Court requesting reinstatement of his judicial review proceedings.[14]
[14] Affidavit of the Applicant filed 6 December 2024, Annexure “1”.
No adequate reason was provided by the Applicant for the delay in making the Reinstatement Application.
I make the observation that the Applicant on a serial basis does not comply with proscribed time limits.
Prejudice
The Minister submitted that there is no material prejudice to the Minister if the Initiating Application is reinstated and again reiterated the position that the absence of prejudice was not in itself a reason to justify the reinstatement of the Initiating Application .
Merits of the application for judicial review
The grounds of review in the Initiating Application were:
1. My case is that the Administrative Appeal Tribunal (AAT) denied procedural fairness
2. That notification of the decision to refuse my visa application was not validly made
3. I have not given chance to provide evidence in support of my visa application
4. I did not receive any correspondence (email, courier, call) from DHA
5. The decision is made on self-determination and not on factual grounds
6. The Department and the Tribunal do not clarify whether the correspondence was delivered to my valid email address or email address with error
7. That I deprived of my legal and fundamental rights by the decision
It was the submission of the Minister the Initiating Application lacks sufficient merit to justify setting aside the Registrar’s Orders of 13 November 2024.
It was the Applicant’s submission that he was not validly notified of the Delegate’s Decision with respect to his visa as he did not receive the Delegate’s email of 28 April 2021, he did not receive correspondence from the Department and the Tribunal did not clarify whether the correspondence was delivered to the Applicant’s correct email address.[15]
[15] Affidavit of the Applicant filed on 17 March 2022, [9].
The Minister submitted that the Initiating Application does not disclose any reasonably arguable error. The Minister took me through each ground of review. The Minister submitted that it would not be in the interests of justice to set aside the Orders of the Registrar.
In dealing with the related Grounds 2, 4 and 6 of the Initiating Application the Minister submitted that the notification letter that was sent to the Applicant satisfied s 66(2) of the Migration Act as it specified that the Applicant did not satisfy cl 188.232 or cl 188.311 of Schedule 2 of the Migration Regulations 1994 (Cth); attached written reasons why the criterion was not satisfied; set out review rights and the prescribed time within which an application for review must be made to the Tribunal.
The Applicant, it was submitted by the Minister, was provided with the Delegate’s Decision at his last known email address provided to the Minister. The Applicant accepted that the email address provided was correct but asserted that a full stop was added to the address which resulted in the email not being received by him. It was submitted that the full stop on the cover page indicated the end of a sentence and that the email which transmitted the notification of the Delegate’s Decision was sent to the Applicant at his email address without a full stop.[16] As such, the Applicant was deemed to have received the notification on 28 April 2021 in accordance with s 494C of the Migration Act.
[16] Court Book filed by the Minister on 29 June 2022, 50.
The Applicant did not make the application to the Tribunal until 28 October 2021, the prescribed period to apply had expired. The Tribunal did not have jurisdiction to deal with the application made to it. The time to apply could not be extended.[17]
[17] Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 (McKerracher, Reeves and Thawley JJ), [83]; Migration Act, ss 476(2)(a) and 476(4).
I agree with the submission of the Minister these grounds have no merit. The Tribunal did not have jurisdiction to deal with the Applicant’s application for merits review.
The Minister also addressed me on Grounds 1, 3, 5 and 7.
It was submitted that Ground 1 lacked merit as the Applicant had legal representation before the Tribunal, that he was invited by the Tribunal to comment on the validity of his application and responded to the invitation to comment which was considered by the Tribunal when it made the jurisdiction finding. With respect to Ground 3 the Minister submitted that the Court does not have jurisdiction to review the Delegate’s Decision nor was there any statutory obligation on the part of the Tribunal to invite the Applicant to provide it with evidence where it did not have jurisdiction. With respect to Grounds 5 and 7 the Minister submitted that these grounds constituted mere statements of belief and do not raise any issue of jurisdictional error in the Tribunal’s Decision.
I do not consider that Grounds 1, 3, 5 and 7 of the Initiating Application have any merit.
At the Hearing I gave the Applicant an opportunity to respond to the Minister’s submissions. He did not contradict any of the submission made by the Minister (save for the submissions made with respect to the notification of the delegate’s decision). The Applicant made comments at the conclusion of the proceeding that had no bearing on the matters I am required to consider and did not respond to the submissions of the Minister. The Applicant’s only concern was that a refusal to extend time would adversely affect his business.
Having considered all the factors I conclude that it is not in the interests of justice to set aside the Registrar’s Orders of 16 December 2024. The Application for Review lacks reasonable prospects of success and weighs against the grant of an extension of time.
CONCLUSION
I refuse to extend the time for filing the Application for Review and otherwise dismiss the Application for Review.
The Minister sought costs in the amount of $2,500 which is less than the scale amount, as prescribed in Item 2, Division 1, Part 2 of Schedule 2 of the GFL Rules. Accordingly, the Applicant is to pay the Minister’s costs in the sum of $2,500.00
Orders will be made accordingly.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 6 March 2025
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