Ami22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1113
•1 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMI22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1113
File number(s): SYG 229 of 2022 Judgment of: JUDGE LAING Date of judgment: 1 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: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 2.05
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 425, 425A, 426, 426A, 426B, 429A, 441A, 441C, 476A and 477
Migration Regulations 1994 (Cth) r 4.35D
Cases cited: AYT16 v Minister for Immigration and Border Protection [2017] FCA 252; (2017) 71 AAR 491
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
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 713
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; 237 ALR 64
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: 41 Date of hearing: 13 October 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Mr M Gao of HWL Ebsworth Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 229 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMI22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
1 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 1 September 2017 the applicant applied for a protection visa.
The applicant was invited to attend an interview, which does not appear to have been attended by the applicant. The Delegate refused the protection visa application on 12 March 2018.
The applicant applied to the Tribunal for review of the Delegate’s decision on 5 April 2018. On 25 October 2021, the Tribunal sent an email to the applicant advising that face-to-face hearings were not being conducted due to the COVID-19 pandemic. The applicant was asked to notify the Tribunal of any issues with attending a hearing via Microsoft Teams. No response was received by the Tribunal.
By email dated 23 November 2021, the applicant was invited to attend a hearing before the Tribunal scheduled to take place on 8 December 2021 by video conference. The applicant did not attend the scheduled hearing.
The Tribunal dismissed the application under s 426A(1A)(b) of the Act and provided written reasons on 10 December 2021. By email sent that day, the Tribunal advised the applicant that reinstatement of the application could be sought within 14 days of receiving notice of the dismissal decision. The correspondence advised that this required that any reinstatement application be made by 24 December 2021.
On 17 December 2021, the applicant provided a new email address to the Tribunal. On 20 December 2021, the Tribunal forwarded the dismissal notification to the new email address, emphasising that a response would be required by 24 December 2021.
The applicant did not apply for reinstatement within the required period.
On 10 January 2022, the Tribunal confirmed its decision to dismiss the application.
THE TRIBUNAL’S DECISION
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) to appear before the Tribunal by video using Microsoft Teams on 8 December 2021 at 3:00pm. 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 her application for review was lodged on 6 April 2018.
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) 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 nonappearance 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 Tribunal confirmed the dismissal on 10 January 2022 and gave the following reasons:
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 March 2018 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).
2.On 10 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). 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 BEFORE THIS COURT
The applicant lodged an application with this Court on 14 February 2022 seeking judicial review and an extension of time in which to seek review. As the application was lodged after 4.30pm, it was taken to have been filed on 15 September 2022 by virtue of r 2.05(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
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 confirmation decision was dated 10 January 2022, the application needed to be filed no later than 14 February 2022 in order to be filed within time. As the application was filed on 15 February 2022, it was filed one day out of time. Whilst I accept, as the Minister observed, that the delay in seeking review of the dismissal decision was longer, I understood that review to have been sought within the context of challenging the confirmation decision.
The application for an extension of time relied upon the following ground:
1. The last day for appeal is on Sunday.
An affidavit filed with the application stated that the applicant “could not find a witness to sign affidavit in time”.
At the hearing, the applicant submitted that she “didn’t know anything” and that she had difficulty in finding someone to represent her. 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, may not on their 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.
However, the delay in this matter was very limited and, as such, does not tend strongly against an extension of time being granted. If I were satisfied that there was merit to the proposed substantive application, then the delay in this case would not have prevented an extension of time being granted.
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:
There exist jurisdictional errors.
1. The Tribunal did not behave fairly.
Tribunal did not consider relevant material before it and dismissed my application due to not attending hearing.
2. Tribunal did not behave properly.
Tribunal did not tell me clearly why my request for protection was refused.
Tribunal did not consider why I could not be protected according to relevant regulations.
At the hearing before the Court, the applicant stated that the grounds of her application had been drafted by an agent. I explained that a migration agent was not qualified to provide assistance in these kinds of proceedings, unless they were also a qualified legal practitioner. The applicant said that she did not know if they were qualified. The precise context of how the application was prepared, including the relationship between the applicant and this (unidentified) person, was not made entirely clear. In any event, the applicant confirmed that the case that she wished to advance was essentially that it was unfair for the Tribunal to have dismissed her application without considering the material before it regarding her protection claims and making findings in relation to those claims.
However, as I explained at the hearing, the Tribunal in this case dismissed the applicant’s matter 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: FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1025; (2020) 279 FCR 212 at [36] per Nicholas J.
The question, then, is whether the Tribunal relevantly erred in making its decisions under ss 426A(1A) and/or 426(IE) of the Act. At the hearing, the Minister spent some time taking the Court and the applicant through the requirements of the Act 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 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 (the proposed method of hearing was permitted under s 429A of the Act: see Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 713 at [43]-[44] per Nicholas J);
(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 was more than the prescribed minimum 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.
At the hearing before the Court, the applicant submitted that she had intended to attend the Tribunal hearing and had been waiting to attend, but had not been called. However, the applicant also said that she had spoken to a person who was “like” a migration agent, who asked her why she would bother attending the hearing. The applicant said that this was why she had not attended the hearing.
The hearing invitation sent by the Tribunal did not express that the Tribunal would call the applicant. Rather, it invited the applicant to use a link to join a hearing at the scheduled time by Microsoft Teams. It also provided dial-in details that the applicant could call if she wanted to attend the hearing by telephone.
In relation to the applicant’s submissions attributing her non-appearance to what a person “like” an agent had said, the Minister submitted that there was no evidence of this conversation and, in any event, it would not be sufficient to establish any arguable case for finding fraud on the Tribunal in a manner capable of providing a basis for setting aside the Tribunal’s decision: see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 237 ALR 64 (SZFDE) at [51] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ).
I explained to the applicant that in order for the Court to take into account what she said as evidence, it would need to be given under oath or affirmation. I explained that she could seek to give oral evidence in this manner at the hearing, and informed her that I would allow this if she sought to do so. However, I also explained that there are cases that say that mere negligence, or bad advice, without more, does not provide a sufficient 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. Ultimately, the applicant did not seek to provide further evidence. The applicant explained that she was unable to provide further information about the person with whom she had spoken, as she could not contact him and had no information about him.
Even if I had evidence before me of the applicant’s account, and accepted that evidence, it would not provide an arguable basis for setting aside the Tribunal’s decision. This is because there is nothing before the Court, even propositionally, to say what the motive was of the person referred to by the applicant. The applicant did not say (or appear to know) if this person had fraudulent or dishonest intentions in asking her why she would appear before the Tribunal. Even if I accepted that they gave the applicant bad or negligent advice, this would not provide an arguable basis for setting aside the decision of the Tribunal.
I 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 scheduled hearing, for the reasons that the Tribunal gave: 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. Those reasons are set out above and included reference to the terms and context of the hearing invitation, the lack of any indication that the invitation had not been received, the SMS reminders that had been sent, the lack of other engagement by the applicant with the review before the Tribunal and case management considerations. 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.
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 10 December 2021.
The applicant was notified of the decision to dismiss her application at her nominated email address. The applicant was taken to have received the notification on 10 December 2021 due to the application of s 441C(5) of the Act, whether or not she 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. The Tribunal also went a step further, in providing a copy of the notification to the applicant at the new email address that she had provided after the notification had been sent. This further notification made clear that the prescribed timeframe ended on 24 December 2021.
The applicant did not apply for reinstatement within the prescribed timeframe. 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 10 January 2022: see AYT16 v Minister for Immigration and Border Protection [2017] FCA 252; (2017) 71 AAR 491 at [9]-[10] per Perram J.
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-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Deputy Associate:
Dated: 1 December 2023
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