Amb22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 986
•2 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMB22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 986
File number(s): SYG 223 of 2022 Judgment of: JUDGE LAING Date of judgment: 2 November 2023 Catchwords: MIGRATION – application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal – considerations – whether there is an arguable basis for setting aside the decision of the Tribunal – application dismissed Legislation: Migration Act 1958 (Cth) ss 425, 425A, 426A, 426B, 441A, 441C, 476A, 477
Judiciary Act 1903 (Cth) s 39B
Migration Regulations 1994 (Cth) r 4.35D
Cases cited: BPJ17 v Minister for Immigration [2019] FCCA 1164
BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17
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: 40 Date of hearing: 29 September 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Ms C Warren of Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 223 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMB22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
2 NOVEMBER 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 affirmed 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 18 September 2017, the applicant applied for a protection visa.
On 29 September 2020, the Delegate refused the application.
The applicant applied to the Tribunal for review of the Delegate’s decision on 2 October 2020.
On 25 October 2021, the Tribunal informed the applicant that a hearing for the matter was likely to proceed via audio-visual link and requested that the applicant respond within seven days as to whether he had any concerns about the hearing proceeding in this manner. The Tribunal did not receive a response from the applicant.
On 22 November 2021, the applicant was invited to attend a hearing before the Tribunal by way of audio-visual link, scheduled to take place on 7 December 2021.
The applicant did not attend the hearing. The Tribunal dismissed the application under s 426A(1A)(b) of the Act and provided written reasons on 8 December 2021.
The Tribunal advised the applicant by email that reinstatement of the application could be sought within 14 days of receiving notice of the dismissal decision. The applicant did not apply for reinstatement within the required period.
On 23 December 2021, the Tribunal confirmed its decision to dismiss the application.
TRIBUNAL’S DECISION
On 8 December 2021, the Tribunal gave the following reasons for its decision to dismiss the application:
1.On 25 October 2021, the Tribunal wrote to the review applicant informing them that a hearing in their matter was likely to proceed via video using Microsoft Teams. The letter asked the review applicant to respond within 7 days if they had any concerns about the hearing proceeding in this manner. The tribunal did not receive a response.
2.The review applicant was invited under s 425 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal by video using Microsoft Teams on 07 December 2021 at 4:00pm. To attend the hearing by video, the review applicant was invited to click on a link in the hearing invitation at the specified time. Detailed instructions on how to attend the hearing were included in the invitation. The hearing invitation also gave the review applicant an option to join the hearing by audio only by calling, at the specified time, the telephone number and unique conference ID specified in the hearing invitation. The hearing was scheduled during the COVID-19 pandemic and the Tribunal determined it was reasonable in the circumstances to hold a hearing by video. The tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by video.
3.The invitation stated that if the review applicant 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. The tribunal also sent the review applicant SMS reminders about the hearing five business days and one business day before the scheduled hearing. The invitation also stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the review without further notice. The review applicant did not respond to the hearing invitation and has not engaged with the Tribunal about the review process since his application for review was lodged on 02 October 2020.
4.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. There is no evidence before the Tribunal that the review applicant joined the hearing by clicking on the link in the hearing invitation at the scheduled time, or that they called the telephone number in the hearing invitation and used the unique conference ID at the scheduled time, as instructed to do in the hearing invitation. There is also no record of the review applicant contacting the Tribunal by any other means at the scheduled time to explain why they had not used the link, or telephone number and unique conference ID, to attend the hearing. 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) of the Act and that the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.
5.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The following reasons were given for confirmation of the dismissal decision on 23 December 2021:
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 September 2020 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).
2.On 08 December 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) of the Act. 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.
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, 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 23 December 2021, the application needed to be filed no later than 27 January 2022 in order to be filed within time. The application to this Court was filed on 8 February 2022, 12 days later. The delay is therefore not extensive in the present case.
The application for an extension of time relied upon the following grounds (reproduced verbatim):
1.I would like to seek the extension time of filing. I would like the court to accept my application for extension of time.
2.I misunderstood the process, so my application has not been filed within time frame.
3. I believe I have a strong case in court.
Whilst I do not wish to underestimate the difficulties that may affect a self-represented litigant navigating the processes of this Court, it has been held that ignorance of such matters, though understandable, does not on its own provide a satisfactory explanation for delay: see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J.
At the hearing, the applicant gave further evidence under affirmation that he did not receive the Tribunal’s decision on time because he lost his mobile phone and changed his email address. However, there is no indication that the applicant informed the Tribunal of a change in contact details.
Having regard to the above, I accept the Minister’s submission that the delay (whilst limited) has not been satisfactorily explained in this case. However, given the limited nature of the delay, the most important consideration in my assessment in this case will be the merits of the proposed application.
Even if I had been satisfied by the explanation for the delay, the extension of time would still have been refused. This is having regard to what I have found in relation to the merits of the application, which are considered further below.
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. 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:
1.The first and second respondent's decision has not been legally delivered to the applicant, the applicant did not receive the notification by email, therefore the second respondent's invitation of providing more documents or evidence was not received by the applicant on time.
2.The first and second respondents did not give full assessment of the complementary claim from the applicant, especially the first respondent did not ask the applicant to give more detail about the complementary claim.
3.The second respondent has given the applicant 14 days to reinstate the application, there is lack of detail of decision letter even based on the documents provided in the initial application.
4.The assessment is biased, and the applicant is not fairly treated, the decision to the applicant should be more thorough than the email transmission.
To the extent that the grounds sought review of the Delegate’s decision, as was explained in the Minister’s submissions and at the hearing, this Court has no power to undertake such a review: s 476(2) of the Act.
Grounds 2 and 3 appeared to take issue with the fact that the Tribunal did not assess the applicant’s protection claims, including by reference to the documents that he had provided with his initial application.
However, as was 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 visa application: BPJ17 v Minister for Immigration [2019] FCCA 1164 at [48]-[63] per Judge Nicholls.
The question, then, is whether the Tribunal relevantly erred in making its decisions under ss 426A(1A) and/or 426(IE) of the Act. In this regard, ground 1 suggested that the applicant did not receive an invitation in time. Ground 4 suggested that a more thorough method than email transmission ought to have been employed.
At the hearing, the Minister spent some time taking the Court and the applicant through the requirements of the Act. I assured the applicant that I would also undertake my own assessment of whether or not the approach taken by the Tribunal complied with these 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) and 441A(5) of the Act;
(c)gave a period of notice that accorded with 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 hearing invitation due to the application of s 441C(5) of the Act, whether or not he actually received it.
I further accept the Minister’s submission that it was not legally unreasonable for the Tribunal to have elected to dismiss the application when the applicant did not attend the hearing, for the reasons that the Tribunal gave. Those reasons are set out above and included reference to the terms of the hearing invitation, the lack of any indication that the invitation had not been received, the SMS reminders the Tribunal had sent to the applicant prior to the hearing, the applicant’s lack of engagement with the review before the Tribunal, as well as case management considerations. These reasons provided an intelligible justification for the Tribunal’s decision: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] per Hayne J, Kiefel J (as her Honour was) and Bell J.
For the above reasons, I conclude that there is no arguable basis for finding that any relevant error attended the Tribunal’s dismissal decision on 8 December 2021.
To the extent that ground 4 contended that the dismissal decision should have been communicated to the applicant using some additional means than email transmission, there was no general obligation upon the Tribunal to do this. Having regard to the unsuccessful nature of the Tribunal’s attempts to additionally engage with the applicant via SMS, and his lack of engagement generally with the review proceedings, I am not persuaded that it was unreasonable for the Tribunal not to have additionally communicated the dismissal decision by a means other than email. Email was one of the methods available to the Tribunal under s 441A(5) of the Act. Its use meant that the applicant was taken to have received the dismissal decision on 8 December 2021: s 441C(5) of the Act. It is not apparent how its use in this manner could possibly meet the high thresholds associated with grounds of bias, which were explained for the benefit of the applicant during the hearing: see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J and Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33] per Gleeson CJ and McHugh, Gummow and Hayne JJ.
The dismissal 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 on 23 December 2021.
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 forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 2 November 2023
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