Avx20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 308
•2 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AVX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 308
File number(s): MLG 644 of 2020 Judgment of: JUDGE DAVIS Date of judgment: 2 December 2021 Catchwords: MIGRATION – Protection visa – extension of time application – where the application for an extension of time is dismissed – no reasonable prospect of success – where there was a substantial delay in making the application – where the applicant does not satisfactorily explain the delay. Legislation: Migration Act1958 (Cth), ss.36, 426A, 426B, 430, 476, 477, 5J Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 58 ALR 305; [1984] FCA 176
Kumar v Minister for Immigration, Citizenship and Migrant Services and Multicultural Affairs [2021] FedCFamC2G 100
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZABP v Minster for Immigration and Border Protection [2016] FCAFC 110
SZSZW v Minister for Immigration and Border Protection[2018] FCAFC 82
SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 1544
SZTES v Minister for Immigration and Border Protection [2015] FCA 719Division: Division 2 General Federal Law Number of paragraphs: 95 Date of last submission/s: 14 July 2021 Date of hearing: 29 July 2021 Place: Melbourne Applicant: In person Solicitor for the Respondents: Ms O’Grady ORDERS
MLG 644 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVX20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DAVIS
DATE OF ORDER:
2 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application filed 26 February 2020 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $3737.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 DAVIS
INTRODUCTION
This is an Application filed on 26 February 2020 (Application) by which the Applicant seeks an order under s 477 the Migration Act1958 (Cth) (Migration Act) extending the time for her to make an application under s 476 for review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 26 October 2017.
On 26 October 2017, pursuant to s 426A(1E) of the Migration Act, the Tribunal confirmed its decision made 11 October 2017 to dismiss the Applicant’s application to review a decision of a delegate of the First Respondent, the Minister, not to grant the Applicant a Protection (Class XA) visa (Visa). On 11 October 2017, the Tribunal had decided to dismiss the Applicant’s application pursuant to s 426A(1A)(b) for her non-appearance before it. Pursuant to s 426A(1E), the Tribunal confirmed that decision on 26 October 2017.
If the Court grants the Applicant an extension of time, by her Application, she seeks, in effect, the following substantive relief:
(a)An order that the decision of the Tribunal be quashed.
(b)A writ of mandamus directed to the Tribunal, requiring it to determine her application according to law.
(c)An injunction restraining the minister himself or by his Department, officers, delegates or agents from making or taking the other action the subject of the proceedings.
APPLICATION FOR EXTENSION OF TIME
The Applicant requires an order under section 477 the Migration Act because she seeks to make her Application well over two years out of time.
Relevantly, ss 477(1) and (2) of the Migration Act provided as follows:
(1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
Again, the Tribunal’s decision made 11 October 2017, was made under s 426A(1A)(b) of the Migration Act – that is, the Tribunal decided to dismiss the Applicant’s application to it on the basis that she did not appear at the Tribunal hearing.
Pursuant to s 477(3)(c) when read together with s 426B(2) and (3) of the Migration Act, the decision made by the Tribunal on 11 October 2017 was taken to be a “migration decision” made on that day for the purposes of s 477(1). That was the day on which the Tribunal dismissed the application under s 426A(1A)(b) by making the written statement required by s 426B(2).
In light of this, the Applicant was required to make her application to this Court for review of that decision within 35 days of 11 October 2017.
However, the decision which the Applicant seeks to impugn by her Application is the Tribunal’s decision made 26 October 2017 to confirm its decision made 11 October 2017 to dismiss her application by reason of her non-appearance. By making the written statement required by s 426A(1E)[1] on 26 October 2017, the Tribunal was taken to have made the “migration decision” which is the subject of the Applicant’s application for an extension of time on that day: s 477(3) when read together with ss 426A(1E) and 430(2).
[1] As set out below, s 426A(1E), in turn, requires a written statement to be made under s 430.
Accordingly, the Applicant was required to make her application to this Court to review the Tribunal’s decision made 26 October 2017 within 35 days of that date.
Again, at all events, the Applicant did not make any application until 26 February 2020.
The Applicant has sought an order extending time on the following grounds (with errors in the original):
(a)I did not have enough money for the court appeal process at the time.
(b)I also can not to pay legal service for appeal to this court at that moment. So to make sure I in lawfull, get volunteered in union of workers to help me in this appeal process.
APPLICANT’S SUBSTANTIVE GROUNDS
By her Application, the Applicant advances the following substantive grounds (with errors in the original):
(a)The Tribunal not consider many vital integer of my case.
(b)The Tribunal failed to consider many vital evidence that are relevant to my case.
(c)The Tribunal deprived me of procedural fairness.
(d)The Tribunal Member relied on incorrect information and decided my case using facts from some other Tribunal case.
(i)The Member has failed to do his duty.
(ii)The Member failed to ask me questions about the types of harm relevant.
(e)According to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) there is a description and authorising me to make such action appeal to Federal Circuit Court.
The Applicant did not, at any stage, provide particulars of any of her grounds.
BACKGROUND
The Applicant is a Malaysian national.
The Applicant arrived in Australia on 26 April 2016 and applied for the Visa on 26 July 2016. Upon lodgement of the application for the Visa, she was granted a bridging visa.
In effect, the Applicant’s claims for protection, as they were summarised by the Department of Immigration and Border Protection (as the relevant Department was then known) (Department), are that:
(a) She left her country because the Government of Malaysia is tracking the group members of Bersih, of which she is one. (Berish is discussed below).
(b) If she were to return to Malaysia, she would be imprisoned.
(c) She could not relocate in Malaysia as it is a small country.
(d) The authorities would not protect her because Bersih opposes the Government of Malaysia.
Bersih, the group of which the Applicant claims to be a member, is a coalition of non-governmental organisations whose stated objective is to reform the electoral system in Malaysia.
The Applicant stated in her application before the Tribunal (with errors in the original):
I left may own country because the Government of Malaysia is tracking the group member of Bersih. I’m the one of Bersih members (Group the Coalition for Clean and Fair Election). Our Minister for of Home Affair, Datuk Sei Ahman Iahid Hamidi said Malaysian who are unhappy with country political system should leave the country. This statement was after series of street demonstrations led by opposition parties, many peoples (group member) prissioned. Media hidden this sensitive issue. I decide to seek refuge and safely life matter. Thank you for Australian Government.
On 3 October 2016, a delegate of the Minister decided to refuse the Applicant’s application for the Visa and gave written reasons for doing so. The delegate was not satisfied that the Applicant met the criteria under section 36(2)(a) or (aa) of the Migration Act. At [21] – [24] of the delegate’s reasons, the delegate stated as follows:
The applicant claims to fear harm from Malaysian authorities. She claims to have left Malaysia because the GoM [Government of Malaysia] is searching for her because she is a member of the Bersih Group. Apart from claiming to be involved in Bersih, the applicant has not displayed any knowledge of the aims or membership of Bersih, or provided details about her involvement in the group’s activities or how her opinions and activities would bring her to the attention of the Malaysian authorities.
The application has not outlined her claims in sufficient detail for me to identify the cause of any potential risk of persecution. I also note that her claims (wording and lack of detail) are identical to those substituted by other applicants for protection.
I consider it reasonable to expect a person who genuinely fears harm in her country of nationality to present her case in sufficient detail for the decision maker to be satisfied of the genuineness of the fear.
Based on the applicant's lack of adequate explanation and details regarding her claims; the lack of supporting evidence and available country information above, I do not find that the applicant has well-founded fear of being persecuted in Malaysia.
The delegate found that there was not a real chance that the Applicant would be persecuted for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act.
In all of the circumstances, the delegate did not consider that the Applicant is a person to whom Australia has protection obligations under the Migration Act.
On 4 October 2016, the Department contacted the Applicant to advise that her application was not successful.
On 31 October 2016, the Applicant applied to the Tribunal for review of the delegate's decision. The Tribunal scheduled a hearing of the Applicant’s application to it for 11 October 2017.
The Applicant was notified of the Tribunal hearing scheduled for 11 October 2017 both by letter dated 19 September 2017 and an email sent to the email address which she had provided on the review application form. Additionally, the Tribunal sent SMS hearing reminders to the mobile telephone number also provided by the applicant on her review application form on 4 and 10 October 2017.
Despite these notifications, the Applicant did not respond to the Tribunal’s hearing invitation and did not attend the 11 October 2017 hearing.
As I observed above, on 11 October 2017, the Tribunal decided to dismiss the Applicant’s application for review pursuant to s 426A(1A)(b) of the Migration Act.
That section provides that:
(1A) The Tribunal may
…
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
...
By its written statement, amongst other things, the Tribunal noted that it was “…satisfied 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 two separate SMS reminders were also sent to the review applicant was about the hearing” (emphasis in original). The Tribunal also stated that “[no] reason for the non-appearance [had] been given”. It went on to say that, in the circumstances, it had decided to dismiss the application without further consideration of that application or the information before it.
On 11 October 2017, the Tribunal notified the Applicant of its decision to dismiss the Application for review by email sent to the email address provided by her on the review application. Amongst other things, by that email, the Tribunal advised the Applicant in effect that:
(a)she should read the correspondence attached to it carefully, noting that the Tribunal may require a response from her before a certain date;
(b)if she had any questions or was experiencing problems opening the documents attached to the email she should immediately contact the Tribunal on a specified email address or telephone number;
(c)she may apply in writing for reinstatement of her application by 25 October 2017;
(d)there were certain identified steps which she should take in support of any such application;
(e)if the Tribunal were to decide not to reinstate the application, or if she failed to apply for reinstatement within the 14 day period, the Tribunal must confirm its decision to dismiss the application.
(f)if the Tribunal were to confirm the decision to dismiss the application, the decision under review would be taken to be affirmed and that the effect of this was that the Department’s decision remained in force;
(g)if she thought that the Tribunal’s decision was wrong in law, she may consider seeking judicial review in the Federal Circuit Court of Australia;
(h)if she wished to apply for review, she must do so within 35 days of the date of its decision;
(i)if she held a bridging visa associated with the application that was the subject of the Tribunal’s review, that visa would cease either:
i.35 days after the Tribunal’s decision was made (if her bridging visa was granted on or after 19 November 2016); or
ii.28 days after you are notified of our decision (if her bridging visa was granted prior to 19 November 2016).
The Applicant did not apply for reinstatement, nor did she otherwise contact the Tribunal.
Again, pursuant to s 426A(1E) of the Migration Act, on 26 October 2017, the Tribunal confirmed its decision to dismiss her application.
That section provides:
(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.
RELEVANT PROCEDURAL HISTORY IN THIS COURT
On 26 February 2020, the Applicant filed her Application together with her affidavit in support.
The substance of that affidavit was limited to the following (with errors in the original):
1.I AM THE APPLICANT OF THE PROCEEDING
2.I AM CONSIDER THAT DAY ARE GRAND, FOR AN APPLICANT FOR REVIEW IN THIS COURT. NOW PRODUCE AND SHOW TO ME DECISION RECORD (A) AND NOTIFICATION OF DECISION RECORD (B)
At the time of filing her Application and affidavit dated 26 February 2020, the Applicant was unrepresented and has remained so throughout the proceeding.
Registrar Carlton made orders on 15 September 2020. Amongst other things, in effect, those orders provided that 28 days before the hearing the Applicant was to file and serve any amended application with proper particulars of the grounds of her application, any supplementary court book and written submissions.
The Applicant has not taken any of those steps.
SUBMISSIONS
First Respondent’s Submissions
The Minister filed written submissions on 14 July 2021.
I set out below some of the high-order points raised in those submissions which were the subject of contest by the Applicant.
The Minister submitted at [15]-[16] that:
The Court has the power to extend time under s 477(2) of the Act, if satisfied that it is necessary in the interests of the administration of justice. The Court should have regard to several factors in determining whether an extension of time is in the interests of the administration of justice. A non-exhaustive list of factors include: the extent and reason for the delay; whether there is any merit in the application; any prejudice to the respondents; the impact on the applicant; and the interests of the public at large.
The first respondent opposes the application for an extension of time as the applicant has not provided an adequate explanation for her delay in commencing proceedings and, even on an “impressionistic evaluation”, the grounds of the proposed substantive judicial review application lack sufficient merit to warrant an order extending time.
[references omitted; emphasis added]
The Minister went on to submit at [17] to [20] that:
The extent of the delay in the present matter is significant. The applicant’s supporting affidavit does not adequately explain the delay or show why it is necessary in the interests of the administration of justice for the Court to grant an extension of time as required by r 44.05(2)(c) of the Federal Circuit Court Rules 2001. Instead, the applicant seeks to explain the delay in the grounds of the application for an extension of time by asserting that she could not afford to apply for judicial review “at the time”, and could not afford legal services “at that moment” and had now “volunteered in union of workers to help me in this appeal process”.
This is a wholly unsatisfactory explanation for the applicant’s significant delay in filing her judicial review application and is not supported by any evidence. The applicant fails to explain what steps (if any) she took to file her application within time, for example there is no recognition of the availability of a waiver of the Court’s filing fee. The applicant’s contention that she could not file an application for judicial review because she did not have legal assistance is unconvincing, particularly given the length of the delay. There is no absolute right to legal representation in migration proceedings and the lack of legal advice or assistance is not itself a sufficient excuse for failing to lodge an application in time. The applicant has not adequately explained how she managed to ultimately file her application with the Court, noting that it is apparent that she has had no legal assistance with the application.
Other than the cost of having to defend an unmeritorious application, the Minister would suffer no prejudice if time was extended, although the mere absence of prejudice is not enough to justify the grant of an extension of time
Critically, and for the reasons outlined below, the applicant’s proposed grounds of judicial review lack sufficient merit for the Court to make an order under s 477(2) of the Act in the interests of the administration of justice.
[references omitted]
As to the Applicant’s substantive application, the Minister submitted, in effect, that what he described as “template grounds” failed to identify or establish any jurisdictional error on the part of the Tribunal.
The Minister then made submissions in relation to each of the Applicant’s grounds,[2] in support of his contention that “even on an “impressionistic evaluation”, the grounds of the proposed substantive judicial review application lack sufficient merit to warrant an order extending time” (emphasis added).[3] I extract those submissions below:
(a)Ground one asserts that the Tribunal failed to consider “vital integers” of the applicant’s case, and ground two asserts that the Tribunal failed to consider “vital evidence”. These grounds fail to grapple with the basis of the Tribunal’s decision, which was to dismiss the application without further considering the applicant’s claims in circumstances where the applicant failed to attend the scheduled hearing.
(b)Ground three asserts that the applicant was denied procedural fairness. This ground cannot be made out in the absence of particulars.
(c)Ground four asserts that the Tribunal relied on facts from another case and failed to ask the applicant questions about her claimed fear of harm. This ground again fails to grapple with the fact that the Tribunal dismissed the application for non-appearance and did not purport to consider the applicant’s claims. In particular, the Tribunal did not rely upon any information from another case and did not have any such information before it.
(d)Ground five does not assert any error on the part of the Tribunal. This ground erroneously asserts that the applicant has a right to judicial review under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), but in any event she has validly applied for an extension of time pursuant to s 477 of the Migration Act 1958 (Cth).
[2] Minister’s submissions at [24] to [27].
[3] Ibid at [16]
In conclusion, the Minister submitted that: [4]
The applicant has not provided a satisfactory explanation for her delay in commencing these proceedings. In addition, the grounds of the proposed substantive application lack sufficient merit to warrant an order extending time. In this case, even the most cursory examination of the proposed grounds plainly reveals that they contain no arguable case.
A Court should not exercise its discretion to extend time, even for a short period, if an application has no prospects of success. The application for an extension of time ought to be refused with costs.
[emphasis added]
[4] Ibid at [37] and [38].
THE HEARING
On 29 July 2021, the Applicant appeared at the hearing before me, with the assistance of an interpreter.
Ms O’Grady of the solicitors for the Minister appeared on his behalf.
The Second Respondent, the Tribunal, did not appear. It had filed a Submitting Notice on 28 February 2020.
As I understand it, the Applicant accepted that she had received a copy of Registrar Carlton’s order of 15 September 2020 which provided her with the opportunity of filing an amended application and written submissions. The Applicant accepted that she had not taken those steps and offered no explanation for not doing so.
The Applicant confirmed that she had been served with the Minister’s written submissions on 14 July 2021, which was just over a fortnight prior to the hearing. During the course of the hearing, I directed the interpreter to translate to the Applicant, in tranches, those paragraphs of the submissions which contained the substance of the Minister’s arguments. The Applicant engaged with the Minister’s submissions in exchanges with the Court.
The Applicant accepted that her application for substantive relief was filed late and stated that this was why she had made an application for an extension of time.
I explained to the Applicant that in order for her to be able to succeed with her Application it was necessary for her to persuade me to extend the time by which she would make her substantive application. I explained to her that, as the Minister had submitted, this entailed her persuading me that it was necessary in the interests of the administration of justice for me to do so.
The Applicant confirmed that she understood this.
I asked the Applicant how she explained her delay of over two years in applying to this Court for review of the Tribunal’s decision about which she complains. I explained that the Minister had submitted that the delay was very extensive and not adequately explained.
I synthesise below the various things that the Applicant told me with respect to these matters during the hearing.
The Applicant said, in effect, that she did not know how to go about bringing an application to this Court. She said that her language was a barrier and that she did not want to make a wrong move or say the wrong thing. She also said that she “was kind of carried away with what – the advice from [her] friends”.
The Applicant’s point about being carried away with the advice of her friends was a recurrent theme in her explanation for her failure to carry out steps in connection with her contest of the delegate’s decision to refuse her application for the Visa. She made the point more than once during the hearing, in effect, that her friends’ advice was a cause of her not applying to this Court earlier.
Moreover, the Applicant told me that the reason that she did not appear before the Tribunal in the first place was, in part, due to her friends’ advice. The Applicant told me that she did not appear before the Tribunal because “I lost some of the evidence that I had which was stored in my phone. Somehow I misplaced my phone and lost the evidences…… Then I was kind of – I was persuaded by my friends that the Tribunal would not accept anything that I am going to say because ..... anything I am going to say in the absence of the evidences...”.
The Applicant told me that she joined the United Workers Union who advised her how to bring her Application to this Court. The Applicant said that she joined the union in January 2020. This was shortly prior to her bringing her Application to this Court. The Applicant told me that she did not consult the union earlier due to a mistake on her part and the influence of friends.
However, the Applicant also said, in effect, that she had been searching for information on how to handle the matter.
The Applicant also sought to explain her delay by saying that she could not afford to get a lawyer to represent her.
Towards the end of her submissions, the Applicant seemed to suggest that the fact that she had lost her phone also was a reason for her delay in her Application to this Court.[5]
[5] T15:44 -16:4.
I explained to the Applicant, in effect, that the Minister had submitted that her substantive claim for review was not a good claim; that is, it lacked sufficient merit to warrant the grant of an order under s 477.
I invited the Applicant’s attention to her grounds and what the Minister had submitted about each of them.
I confirmed with the Applicant that she understood that the Tribunal had dismissed her application to it on the basis that she did not attend the hearing to which she was invited. The Applicant stated that she understood this.
I asked the Applicant how, in light of this, she maintained her first two grounds; that is, that the Tribunal had failed to consider a vital integer of her case. The Applicant responded by saying: “[b]ecause – my answer, your Honour – because the Tribunal ..... my refusal decision. So on that basis I am saying they did not make the right decision. The Tribunal did not make the right decision.”
With respect to her third ground, that is that she was denied procedural fairness, the Applicant submitted that she put this on the basis that she had lost evidence which had been stored on her phone, she assumed that the Tribunal had the delegate’s decision and that she was persuaded by her friends that the Tribunal would not accept anything that she would say, absent the evidence which she had lost.
With respect to her fourth ground, I asked the Applicant how she put that there was reliance on the facts of another case and that the Tribunal failed to ask her questions about her fear of harm given that the Tribunal merely dismissed her case by reason of her non-appearance.
The Applicant responded as follows:
Okay. I was absent – okay. I did not attend the Tribunal hearing and the reason is, as I said earlier, I lost the evidence that I had on my phone which I misplaced. And because of influence from the friends, your Honour. I was kind of – I did not know what to say to the tribunal if I have attended.
The Applicant confirmed that this response was the substance of her complaint that the Tribunal relied on facts from another case and failed to ask her relevant questions or do its duty.
The Applicant abandoned her fifth ground.
I asked the Applicant, in effect, whether there was anything further that she had to say in support of her Application and, in particular, anything that she wished to say to the effect that Tribunal’s decision was unfair or unlawful. The Applicant responded that there was not.
Ms O’Grady, on behalf of the Minister, adopted her written submissions without adding to them.
CONSIDERATION
Principles
As I have noted above, s 477(2) of the Migration Act empowers me to extend the time for the Applicant to make her substantive application for review if I am satisfied that it is in the interests of the administration of justice for me to do so.
The Migration Act does not define the phrase “interests of the administration of justice”. However, the phrase has been the subject of considerable judicial consideration.
In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 Wigney J observed at [43] to [47] that:
43.Section 477(2)(b) of the Act imposes an express precondition to the exercise of discretion in favour of an applicant, namely that the extension of time is “necessary” in the interests of the administration of justice: SZTSU at [2]. It is only if that precondition is satisfied that the discretion is enlivened. It should also be emphasised that the statutory precondition is to be formed to the satisfaction of the Federal Circuit Court. That is particularly important here. The Federal Circuit Court might not be satisfied that this precondition has been made out even if the Minister did not oppose, or consented to, the extension application.
44.Section 477(2) does not define or confine the matters that the Federal Circuit Court can or should have regard to in considering the interests of the administration of justice. In Hickey v Australian Telecommunications Commission [1983] FCA 96; (1983) 72 FLR 291 at 297, Lockhart J said the following in relation to power to extend the time in which an application may be made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act):
... the court should not surround the exercise of its discretion with unnecessary constraints such as a requirement that there be special circumstances or considerations of that kind. The statute does not require them. Nor should the courts. It is best left to the good sense of the judge hearing each case to determine whether, on the evidence before him, the court’s discretion should be exercised in favour of granting an enlargement of time to bring an application for an order of review.
45.Likewise, in Pozniak v Minister for Health (unreported, Federal Court of Australia, Burchett J, 14 March 1986) Burchett J, in a passage quoted with approval by French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 83 … at 97, said:
The authorities necessarily deal with an endless variety of situations. As a consequence, they show a constant change of emphasis on particular features. The cases set up signposts to guide the court’s discretion, but they do not erect fences to limit the breadth of the field within which the legislature has chosen to confer discretion upon the Court.
46.Section 11 of the ADJR Act does not contain an express precondition invoking the interests of the administration of justice. Nevertheless, these observations made in the context of s 11 of the ADJR Act are apposite to the exercise of jurisdiction under s 477(2) of the Act.
47.In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 139 ALD 252 (SZRIQ), Foster J said the following concerning s 477(2) of the Act (at [46]-[48]):
There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
a.Whether there has been a reasonable and adequate explanation for the applicant’s delay;
b.Whether there is any prejudice to the Minister;
c.Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
48.The factors to which I have referred… above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.
In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 58 ALR 305; [1984] FCA 176 at [18] to [23], Wilcox J identified non-exhaustive factors which may be considered in the calculus of whether an order ought be made extending time for filing an application for review under s 11 of the Administrative Decisions (Judicial Review) Act as was then in force. The factors identified by Wilcox J included:
(a) the reasons for the delay;
(b) whether there is any merit in the application;
(c) whether there is any prejudice to the respondents;
(d) the impact on the applicant; and
(e) the interests of the public at large.
That decision been applied in this Court (in what is, in effect, its previous incarnations) with respect to the question whether it is necessary in the interests to extend the time for the filing of an application for review under s 477(2) of the Migration Act. By way of example only, see Kumar v Minister for Immigration, Citizenship and Migrant Services and Multicultural Affairs [2021] FedCFamC2G 100 (Kumar) and the cases cited therein.
As A Kelly J observed in Kumar at [30] to [32]:
30.The discretion to extend time for the commencement of proceedings is a deliberately broad one: Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249, [25]. It is well-settled that in the determination of whether an extension of time should be granted, the court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent if the extension was granted, the merits of the substantive application and any other factor considered to be relevant: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9; MZZQA v Minister for Immigration and Border Protection [2016] FCA 584, [8]; CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354, [4]; AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358, [10]-[11].
31.Despite the broad discretion, the court should not grant an application for an extension of time unless it is proper to do so.That this is so brings to attention that legislative time limits are not to be ignored: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348. The discretion conferred recognises that there will be cases in which, although no prejudice may be sustained by the Minister, the consequences for an applicant in losing a right of review are real.
32.If an extension of time is to be granted, the court must be satisfied that it is in the interests of justice to do so: SZSZW v Minister for Immigration and Border Protection[2018] FCAFC 82, [27]; MZABP v Minister for Immigration and Border Protection(2016) 152 ALD 478, [38]. Whether an extension of time should be granted depends upon the particular circumstances of each case: Mentink v Minister for Home Affairs [2013] FCAFC 113, [32]-[38].
[emphasis added]
In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [58]- [63], Mortimer J expressed principles to be taken into account in an extension of time application under s 477(2). Those principles were approved by the Full Court in MZABP v Minster for Immigration and Border Protection [2016] FCAFC 110 at [38] and again in SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 1544. In particular, with respect to the proper approach the consideration of the merits on such an application, Mortimer J considered that:
62.... it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see ... Jackamarra v Krakoer(1998) 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
63.The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” ...
In MZABP, Mortimer J also observed that the test for determining whether to extend time was “deliberately broad”.[6]
[6] MZABP at [52] as applied in SZSZW at [27].
In SZSZW v Minister for Immigration and Border Protection[2018] FCAFC 82, the Full Court observed at [22] that:
… the primary judge noted that it was not in issue that, in considering whether the application was “sufficiently arguable”, the FCCA judge was not confined to a consideration of the grounds in the draft application for review but was free to also engage with the AAT’s reasons. The FCCA judge was entitled, in other words, to explore whether the grounds have any substance: see e.g. DMI16 v Federal Circuit Court of Australia [2017] FCA 1179 at [33]- [36].
Application of principles
In this case, I do not consider that it is necessary in the interests of the administration of justice to make the order to extend the time limited by s 477(1) for the Applicant to bring her application for review.
First, the delay here is significant, being well in excess of two years.
Secondly, I am not satisfied that the Applicant has provided a satisfactory explanation for such a lengthy delay. In particular:
(a)The Applicant does not identify any steps which she took to inform herself how to commence an application for review, or an application for an extension, of time prior to her claim that she joined a union, over two years after the Tribunal made its decision.
(b)The Applicant’s contention that her delay could adequately be explained by the fact that she could not file an application for judicial review without the assistance of a lawyer is unsatisfactory, particularly given the length of the delay. Further, the Applicant did not endeavour to explain what, if any, steps she had taken to obtain voluntary legal assistance, for example, from a community legal centre. Indeed at least in part, her explanation for not having contacted the union earlier was that she was influenced by her friends – which is reflective of a conscious choice by her. Moreover, ultimately, the Applicant filed her applications for judicial review and for an extension of time without claiming to have been legally assisted in doing so.
(c)The Applicant’s failure to apply to this Court earlier was at least partly a function of her conscious choice. For example, the Applicant’s statement that a reason for her not applying to this Court earlier was that she was “…carried away with…advice from [her] friends…”.
(d)To the extent that the Applicant attributed her failure to apply to this Court earlier to her stated loss of her phone and evidence contained on it, this again would be her conscious choice. Moreover, the Applicant did not explain what this evidence was. For reasons which I develop below, it is hard, if not impossible, to conceive of how any evidence stored on a phone might be relevant either to the Applicant’s substantive application for review or her application for an extension of time.
(e)To the extent that the Applicant attributed her delay to a lack of funds to pay filing fees associated with commencing her Application, she did not seek to explain any change in her financial situation from the time at which the application was due to the present. Accordingly, amongst other things, her position was opaque as to when she might first have been able to afford to commence the application.
(f)In any event, first, I agree with the Minister that the Applicant did not seek to explain what, if any, steps she took to determine whether filing fees associated with the commencement of the proceeding might have been waived. Secondly, in any event, it is the Applicant’s position that she first learned of how to make the relevant applications when she consulted the union. If this is true, it is hard to see how any inability which she might have had in paying fees associated with commencing the relevant applications prior to that time is relevant.
In my view, the substantial length of the delay in this case, combined with the Applicant’s failure to satisfactorily explain that delay, is sufficient for me to conclude that it is not in the interests of the administration of justice to grant to the Applicant the extension of time sought.
Separately, at an impressionistic level, I consider that the Applicant’s grounds for review in this case have no reasonable prospect of succeeding. Indeed, at an impressionistic level, they appear devoid of any merit at all.
I reach this conclusion because none of the Applicant’s remaining grounds (again the Applicant abandoned her fifth ground) engaged with the fact that the decision which she sought to impugn, namely the decision made by the Tribunal on 26 October 2017, was made as a result of a statutory mandate.
Put another way, that decision was made by the Tribunal pursuant s 426(1E) of the Migration Act. That section has the effect of compelling the Tribunal to confirm its decision to dismiss an application under s 426(1A)(b) if the Applicant has not applied within 14 days to reinstate the application under s 426(1B).
It is not in contest that the Applicant failed to appear before the Tribunal on 11 October 2017, the Tribunal dismissed her application on that day on the basis of her non-appearance under s 426(1A)(b) and that she did not apply for reinstatement of her application prior to 26 October 2017.
Accordingly, the Tribunal had no choice but to make the decision which the Applicant seeks to impugn.
At an impressionistic level, there is nothing in the Applicant’s grounds which have any bearing on this.
Moreover, to the extent that it may be suggested that the Tribunal’s decision made 26 October 2017 was made collaterally to its decision made 11 October 2017, it is not in contest that such decision was made under the Tribunal’s power pursuant to s 426(1A)(b) on the basis of the Applicant’s failure to appear before it. The Applicant’s failure to appear was not foreshadowed her (and, as it happens, as a result of her conscious choice). At an impressionistic level, there is nothing in the Applicant’s grounds which provides a reasonably arguable basis for impugning that decision.
That, at an impressionistic level, the Applicant’s grounds are not reasonably arguable and, in my view, indeed devoid of any merit at all, is an additional sufficient basis for me to conclude that it is not necessary in the interests of the administration of justice for me to grant the application to extend time.
I dismiss the application filed 26 February 2020 with costs.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Davis. Dated: 2 December 2021
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