AWF22 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 983

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AWF22 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 983

File number(s):	SYG 307 of 2022
Judgment of:	JUDGE MCCABE
Date of judgment:	25 September 2024
Catchwords:	MIGRATION – application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal – relevant considerations – extension of time refused
Legislation:	Migration Act 1958 (Cth), ss 66, 477, 494B, 494C
Division:	Division 2 General Federal Law
Number of paragraphs:	25
Date of hearing:	25 September 2024
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the First Respondent:	Mr J. Pinder, Mills Oakley
Solicitor for the Second Respondent:	Submitting appearance save as to costs

ORDERS

SYG 307 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AWF22

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MCCABE
DATE OF ORDER:	25 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to ‘Minister for Immigration and Multicultural Affairs’.

2.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.

3.The applicant pay the first respondent’s costs fixed in the amount of $4189.38.

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).

EX TEMPORE REASONS FOR JUDGMENT
Revised from transcript

JUDGE McCABE:

1. The applicant in these proceedings wants the Court to review a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 October 2021. Her application for review faces an obstacle which we need to deal with today: that obstacle arises out of the fact s 477(1) of the Migration Act 1958 (Cth) (Act) says the applicant has 35 days after the effective date of the Tribunal’s decision to commence these proceedings. That means the applicant should have applied to the Court by 17 November 2021 – but the applicant did not approach the Court until 1 March 2022. It follows these proceedings have been commenced (or were sought to be commenced) out of time.

2. The time limit in s 477(1) of the Act is a default rule which is imposed to ensure efficient and expeditious administration, a feature of good government. An applicant in the Tribunal has review rights, but the applicant is expected to act on them diligently. But the Act also recognises it may be appropriate to make exceptions in some cases. Section 477(2) of the Act gives the Court the power to extend the time for seeking judicial review, which is the substance of the question before me today.

3. The discretion in s 477(2) of the Act is conditioned upon the applicant filing an extension of time application which includes a written statement identifying the reasons that justify the extension of time: s 477(2)(a). The discretion may be exercised where the Court is satisfied it is in the interests of the administration of justice to grant the extension of time: s 477(2)(b). Note the Court focuses on whether the extension of time is in the interests of the administration of justice - it is not just an appeal to justice considerations more generally.

4. There is some question over whether the applicant has satisfied the procedural requirement in s 477(2)(a) of the Act that she explain in writing why it is necessary in the interests of the administration of justice to grant the extension of time. Her application for review refers to ‘procedural error and ambiguousness’ which I take to be a criticism of the decision under review, and that of the department. That explanation - to the extent it is one - does not really address what was required under s 477(2)(a) of the Act. However, the applicant has provided some further information today from the bar table which may cure that shortcoming.

5. The focus of the extension of time proceedings has instead been on the requirement in s 477(2)(b), namely whether the extension of time is in the best interest of the administration of justice.

6. Section 477(2) of the Act does not on its terms specify what matters the Court should consider when weighing up the interests of the administration of justice. Even so, it is conventionally accepted several factors are likely to be relevant in a case like this. I accept those matters include:

   (1)the extent of the delay, and the reasons for that delay. A short delay will usually count for less, while a long delay (or indeed any delay that suggests the applicant was resting on her rights) will be more of an issue. The absence of a good excuse will not necessarily be fatal to the application, but it must be considered in the mix;

   (2)the prejudice (or potential prejudice) to the respondent if the extension of time is granted – keeping in mind at all times the prejudice to the applicant that will accrue if the extension of time is not granted. In other words: what is the prejudice to the applicant if she does not succeed today?; and

   (3)the merits of the underlying application for review. Where the merits of the judicial review application are obvious or at least arguable, there will be a much stronger case for an extension of time, whereas an obviously weak case counts against exercising the discretion because prolonging the process would be inefficient and unkind.

7. But ultimately, I focus on the statutory criterion which refers to the interests of the administration of justice.

8. I turn to the considerations. As to the delay: I note the applicant approached the Court some 113 days outside of the period set under the Act. The delay is significant, although not extreme.

9. The reasons for the delay are not clearly addressed in the application for an extension of time. At the hearing, the applicant referred to not having legal advice. That is not ordinarily regarded as a satisfactory reason because she did have the opportunity to seek advice if she wished to do so. As it happens, it seems from her explanation in evidence today that she did not act quickly, with or without advice, because she did not have the communications from the Tribunal translated. I accept in those circumstances she may not have entirely understood the importance of the deadline, or the fact that there was a deadline.

10. Having said that, the explanation is difficult to square with any complaint that the Tribunal did not do enough to draw her attention to the deadline. The limits on review rights were clearly mentioned in the pamphlet which was provided with the decision. This pamphlet is reproduced in the court book. The applicant cannot be misled by something she did not read or have translated. I should add in this case the applicant should have been sensitised to the importance of delay given the Tribunal’s decision was itself concerned with the applicant’s delay in filing an application for review.

11. In all the circumstances, given the length of the delay and the explanations given for that delay, I do not think this consideration counts in favour of the exercise of the discretion.

12. I turn then to the second matter, which is prejudice. The respondent accepts it will not be prejudiced save as to costs if the extension of time is granted, whereas the applicant will presumably have exhausted her remedies if the extension of time is not granted and would therefore face the prospect of returning to her home where she says she is at risk. It is difficult to properly assess that risk and the prejudice that may accrue in circumstances where the Tribunal did not engage with the substance of the claim for protection because it was not satisfied it had the jurisdiction to do so.

13. On the basis of the material in front of me, I accept this ground counts in favour of the exercise of the discretion.

14. That brings me to the merits of the underlying application. As the respondent explained, the Court should be satisfied the applicant’s case is reasonably or sufficiently arguable because there is unlikely to be any point in extending time if the substantive case is without merit.

15. The applicant is not represented in these proceedings, so it is important for the Court to engage more closely with the grounds of review and examine the reviewable decision. It is, as I have explained, a jurisdiction decision. I must be satisfied the Tribunal was right in its assessment of its own jurisdiction.

16. The Tribunal’s decision is short. It runs for just over a page and a half and focuses on the fact the applicant’s application for review to the Tribunal was itself filed out of time. The Tribunal recorded the fact a delegate of the respondent Minister (the Delegate) made a decision on 31 May 2021 and the application for review was lodged with the Tribunal on 1 September 2021, which the Tribunal found was several months after the day on which the applicant was notified of the decision. The Tribunal concluded the applicant was taken to have received the notice of the Delegate’s decision on 31 May 2021 in accordance with ss 494B and 494C of the Act.

17. The first ground of review mentioned by the applicant refers to an unfortunate anomaly: after making the decision on 31 May 2021, the Delegate sent news of the decision in two different emails to the applicant. The first of them sent by email to the applicant’s address at 5.25pm that day did not include any information about the applicant’s review rights, which means the notice was defective in the sense it did not fully comply with the notice requirements; but a second email was sent minutes later which attached the notice of decision and included a covering letter which included the required information on appeal rights, in accordance with s 66 of the Act.

18. The Tribunal relied on ss 494B and 494C (s 494C in particular) of the Act to find the applicant had been notified of the decision on 31 May 2021, which meant the application for review had to be commenced within 28 days of that date. I am satisfied when reviewing the content of the letters that the second letter should be treated as an effective notice which triggered the commencement of the appeal period, because it included all the required information. The applicant said she was confused by the correspondence, but she also says at the hearing that she did not recall reading and translating the documents.

19. It follows there is nothing to the first ground of review.

20. The second ground of review refers to the significance of the Delegate’s failure to expressly calculate the relevant date by which the review must be commenced, or by which the appeal must be filed. I am satisfied this ground of review is not made out because the Delegate did enough in the second letter to draw the applicant's review rights to her attention. I note the applicant said she did not recall reading the document in any event.

21. The third ground of review is also without merit. The Tribunal properly focused on the date when the notice of the Delegate’s decision was provided to the applicant because that is the relevant date in light of the deeming provisions. Confusingly, this ground of the application also asserts the applicant did not receive the document, but I note she accepts today that she did receive the documents, even if she did not read and translate them.

22. The last ground of review is effectively an allegation that the Tribunal denied the applicant procedural fairness. She says she was not given an opportunity to comment on relevant matters, but I note there is an invitation to provide information issued by the Tribunal reproduced at p 113 of the court book, and she did not take up that invitation.

23. When I consider all those matters together, I am not satisfied the merits of the underlying application weigh in favour of exercising the discretion to extend time.

24. When I have regard to all the matters which I am required to take into account, I am not satisfied it is in the interests of the administration of justice to extend time. That means the application must fail.

25. The respondent has asked for an order as to costs. The applicant said she could not afford to meet any costs order, but that is not a reason not to order costs. I see no reason why a costs order should not be made, and the amount of the costs should be determined in accordance with the scale set out in the rules.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.

Associate:

Dated:       2 October 2024