BCD22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 928
•18 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BCD22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 928
File number(s): SYG 452 of 2022 Judgment of: JUDGE LAING Date of judgment: 18 October 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 – where the Tribunal dismissed the application to it for non-appearance and the applicant did not apply for reinstatement within time – whether the extension of time ought to be granted – whether grounds available to the applicant are reasonably arguable – application dismissed Legislation: Migration Act 1958 (Cth) ss 425, 425A, 426A, 426(IE), 441A, 441C
Migration Regulations 1994 (Cth) r 4.35D
Cases cited: 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
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
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: 1 September 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the Respondents: Ms C. Warren of Sparke Helmore Lawyers ORDERS
SYG 452 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BCD22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
18 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application for an extension of time filed on 22 March 2022 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 had affirmed its decision to dismiss an application made to it for review of a decision of a delegate (Delegate) of the first respondent (Minister). By that decision, the Delegate had refused to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
BACKGROUND
The applicant is a citizen of the Republic of India. On 6 July 2016, the applicant applied for a protection visa.
On 20 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 6 October 2021, the Tribunal invited the applicant to attend a hearing on 22 October 2021. The applicant did not respond to the invitation, and did not appear at the hearing.
On 25 October 2021, the Tribunal dismissed the application and sent the applicant an email notifying him of this and of the opportunity to seek reinstatement. The applicant did not respond or seek reinstatement within the period required.
On 9 November 2021, the Tribunal confirmed its decision to dismiss the application.
TRIBUNAL’S DECISION
The Tribunal gave the following reasons for its decision on 25 October 2021 to dismiss the application:
1.On 24 and 27 September 2021, the Tribunal attempted to contact the applicant by telephone to provide him with an update on the progress of his case and to inquire whether he was potentially able to attend a video hearing. The calls did not connect. On 24 September 2021, the Tribunal sent an email to the applicant's nominated email address asking him to contact the Tribunal to discuss hearing arrangements. No response was received.
2.On 29 September 2021, the Tribunal undertook a search of Departmental records and found an alternative telephone number for the applicant. The Tribunal called this number but the call did not connect.
3.The applicant was invited under s 425 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal on 22 October 2021 at 11.00am. The Tribunal exercised its discretion to hold the hearing by video using the Microsoft Teams platform. To join the hearing by video, the applicant was invited to click on a live link, at the specified time, in the hearing invitation. The hearing was scheduled to be held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. 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.
4.The invitation stated that if he did not attend the scheduled hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The applicant did not respond to the hearing invitation and 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 applicant was properly invited to a hearing in accordance with s 441A(5). The hearing invitation was sent by email to the applicant's nominated email address and there is no evidence that the email was not received or that it 'bounced back'.
5.On the morning of the hearing, the Tribunal called the applicant's telephone number several times in an attempt to contact him. The calls did not connect. The Tribunal was not contacted by the applicant to explain his non-appearance or to seek an adjournment of the hearing. Accordingly, no reason for the non-appearance has been given.
6.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 gave the following reasons for its decision on 9 November 2021 confirming the dismissal:
1.This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 February 2017 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).
2.On 25 October 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...
5. The Tribunal confirms the decision to dismiss the application.
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 9 November 2021, the application needed to be filed no later than 14 December 2021 in order to be filed within time. The application to this Court was filed on 22 March 2022, more than 3 months later. This is not insubstantial. However, it is not as extensive as in some matters that come before this Court.
The applicant has provided two explanations for the delay:
(a)The first is that he didn’t receive the Tribunal decision until March 2022 because it was sent to another email address. He says that he only found out about this in March 2022 when he discovered that his visa had lapsed. He says that he “took action to lodge the judicial review without any further delay” once the decision record was received.
(b)The second is that he was affected by COVID and “post COVID medical complications” in December 2021 and January 2022, which restricted his movements and ability to travel.
I accept the Minister’s submissions as to why this explanation is unsatisfactory. The decision record was sent to the email address that had been provided to the Tribunal in connection with the review. Whilst the applicant had sought a letter from the Tribunal for Medicare on 29 November 2021 using the new address, this was after he had been notified of the Tribunal’s decision. In response, the Tribunal explained what was necessary to verify the new email address and allow correspondence to be sent to it. Such action, and the request for the decision record to be resent, only appears to have occurred in March 2022.
The applicant has not provided any medical evidence regarding his experiences with COVID. It is also not apparent how this is contended to have affected the delay in applying for judicial review, in circumstances where the applicant says he only found out about the Tribunal’s decision in March 2022.
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 applicant relied upon an application filed on 22 March 2022 containing the following grounds (errors in original):
1.The Tribunal erred in law by failing to give "proper, genuine and realistic consideration" to the evidence held on record . This resulted in miscarriage of justice .
Particulars
The applicant never received any invitation by phone or email to attend the AAT (Administrative Appeals Tribunal ) hearing. Hence the applicant never attended the hearing and the case was dismissed . While dismissing the case the Tribunal failed to consider the material on record including the evidence adduced before the delegate . It is submitted that the Tribunal failed to appreciate all the evidence provided by the applicant to the Delegate in an intelligible manner after bestowing proper consideration as required in Federal Court Judgement in CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190 (23 December 2019) Paragraph 83
2)The Tribunal erred in law as it failed to provide adequate opportunity for the applicant to put forward his case
Particulars
The applicant was self represented at the Tribunal hearing . The applicant never received any invitation by phone or email to attend the AAT hearing. The applicant got a copy of the AAT decision only after the applicant voluntarily contacted the AAT to know the status of the proceedings as his VEVO (visa entitlement verification online) indicated that his visa had expired . The applicant was never informed of the hearing or the decision as required by law by the AAT . This also violates the principles of natural justice as the applicant was not provided with adequate opportunity to present his case .
Ground 1 contended that the Tribunal failed to give “proper genuine and realistic consideration to the evidence held on record”. However, 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.
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.
Whilst the applicant contends under both grounds 1 and 2 that he did not receive the hearing invitation, 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 see no basis in this matter for a finding of legal unreasonableness in circumstances where:
(a)the hearing invitation had been sent to the only email address that had been provided by the applicant to the Tribunal in connection with the review;
(b)although an Integrated Client Services Environment search appears to have indicated possible alternative contact details in September 2021, the Tribunal’s attempt to contact the applicant by telephone in relation to those details was unsuccessful and the applicant does not appear to have verified those details in relation to his application to the Tribunal;
(c)although the applicant provided some evidence to the Department in support of his application, attended an interview before the Department and had provided some further evidence to the Tribunal with his application to it, the materials did not indicate any sustained level of engagement or participation that might have alerted the Tribunal to any temporary misadventure on the part of the applicant that was capable of being readily corrected;
(d)the Tribunal made various attempts to send SMS reminders of the hearing to the applicant; and
(e)the Tribunal’s repeated attempts over a considerable period to contact the applicant on the day of the hearing were unsuccessful.
The reasons provided in the Tribunal’s decision dated 25 October 2021 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 other attempts that had been made to contact the applicant, as well as case management considerations.
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 25 October 2021.
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 25 October 2021 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 9 November 2021.
At the hearing of this matter, the applicant raised that he had completed a form indicating a change of contact details. However, he confirmed that this form was provided to the Tribunal in March 2022. As this was after the Tribunal’s review was completed, it cannot demonstrate any arguable basis for finding relevant error in the approach taken by the Tribunal.
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: 18 October 2023
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