Arn21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 974
•1 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ARN21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 974
File number(s): SYG 439 of 2021 Judgment of: JUDGE LAING Date of judgment: 1 November 2023 Catchwords: MIGRATION – application to extend time for applying for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Protection (Class XA) (subclass 866) visa – relevant principles – 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: 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
Malecaj v Minister for Immigration and Border Protection [2016] FCA 1508
Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
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: 34 Date of hearing: 22 September 2023 Place: Sydney Applicant: In person Solicitor for the First Respondent: Ms K Pieri of MinterEllison Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 439 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARN21
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 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
INTRODUCTION
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 national of Malaysia. On 7 November 2016, the applicant applied for a protection visa.
On 24 February 2017, the Delegate refused the application. The applicant applied to the Tribunal for review of the Delegate’s decision on 8 March 2017.
On 2 February 2018, the Tribunal invited the applicant to attend a hearing on 15 March 2018. The applicant did not respond to the invitation, and did not appear at the hearing.
On 15 March 2018, the Tribunal dismissed the application and sent the applicant an email notifying them of this and of the opportunity to seek reinstatement. The applicant did not respond or seek reinstatement within the period required.
On 5 April 2018, the Tribunal confirmed its decision to dismiss the application.
TRIBUNAL’S DECISION
The Tribunal gave the following reasons for its decision on 15 March 2018 to dismiss the application:
1.The review applicant was invited under s.425 of the Migration Act 1958 to appear before the Tribunal on 15/03/2018 at 9:30am. The invitation stated that if they 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 a SMS reminder about the hearing one business day before the scheduled hearing.
2.The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. 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), the invitation has not been returned to sender, and that a SMS reminder was also sent to the review applicant about the hearing. No reason for the non-appearance has been given.
3.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
(Emphasis in the original)
The Tribunal gave the following reasons for its decision on 5 April 2018 confirming the dismissal:
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 March 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (the Act).
2.On 15 March 2018 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.
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 the 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 5 April 2018, the application needed to be filed no later than 10 May 2018 in order to be filed within time. The application to this Court was filed on 17 March 2021, some years later. On any view, this was an inordinate delay.
In his application, the applicant provided the following explanation for the delay:
1. I am late in filing my case to the court because I did not know about the process after my review to the Administrative Appeals Tribunal.
2.I was only able to file my case when a friend advised me how to file my case to the Federal Circuit Court.
At the hearing, the applicant claimed that his phone had been broken and that because of this, he had missed the hearing date for the Tribunal review. The applicant stated that this was why he needed to approach his friend and ask about how to approach the next step. The applicant also referred to the coronavirus pandemic and stated that he had not known how to defend himself in this matter.
I accept the Minister’s submission that this explanation does not satisfactorily explain the lengthy delay in the present case. As the Minister submitted, correspondence was sent to the applicant from the Tribunal by email. Whilst it is understandable that the applicant may have faced some difficulties in knowing what to do after receiving the Tribunal decision, and within what time, ignorance is generally not regarded as 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. This is particularly so in the present case, where the delay is measured in years rather than days.
In any event, even if I had been satisfied by the applicant’s explanation, the extension of time would have been refused. This is on account of what I have found in relation to the merits of the proposed application, which are considered below: see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23].
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 decision made to refuse my Protection Visa application has a jurisdictional error.
2.The decision maker’s findings about the Royal Malaysia Police was based on a report that was falsely reported.
3.The decision maker’s statement about the applicant not facing harm when returned to Malaysia is purely based on his/her personal opinion and not on any facts.
The grounds raised by the applicant appeared to seek review of the Delegate’s decision. As was explained at the hearing of this matter, this Court has no jurisdiction or power to conduct such a review: s 476(2) of the Act.
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: 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;
(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 period of 14 days: s 425A(3) of the Act and r 4.35D of the Migration Regulations 1994 (Cth) (Regulations); 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.
As noted above, the applicant contended that he missed the hearing date due to his phone being broken. Unfortunately for the applicant, even if he did not actually see the invitation to the hearing, he was deemed to have received it in accordance with s 441C(5) of the Act.
I have considered whether the Tribunal acted reasonably in exercising its discretion to dismiss the application. I accept the Minister’s submission that the Tribunal’s exercise of discretion was not legally unreasonable in circumstances where:
(a)the Tribunal had validly invited the applicant to a hearing, with the invitation advising the potential for the matter to be dismissed if the applicant did not attend;
(b)there is no evidence that the Tribunal knowingly scheduled a hearing on a date that the applicant could not attend, or that the applicant informed the Tribunal that he was unable to attend on the scheduled date: see Malecaj v Minister for Immigration and Border Protection [2016] FCA 1508 at [11] per Pagone J;
(c)the Tribunal sent an SMS hearing reminder to the applicant’s phone the day before the hearing. Although the applicant informed the Court that his phone had broken, this does not appear to have been known to the Tribunal; and
(d)the applicant had limited interaction with the Tribunal prior to the hearing, with the result that his non-attendance was not so unexpected or remarkable as to have warranted a different exercise of the Tribunal’s discretion.
The reasons provided in the Tribunal’s decision dated 15 March 2018 demonstrated an evident and intelligible justification for its decision to dismiss the application: 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, which are set out above, took into account the correctness of the hearing notification, the warning that had been provided regarding the consequences of non-appearance, the SMS reminder that had been sent and the lack of indication that the hearing invitation had not been received.
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 15 March 2018.
The applicant was notified of the decision to dismiss his application at his nominated email address. The applicant was taken to have received the notification on 15 March 2018 due to the application of s 441C(5) of the Act, whether or not he 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.
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 5 April 2018: 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 thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 1 November 2023
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