BCJ21 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 994
•12 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BCJ21 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 994
File number(s): SYG 729 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 12 October 2023 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal (“Tribunal”) decision – protection visa – refusal.
ADMINISTRATIVE LAW – Review of Judicial Registrar’s decision to summarily dismiss the application for lacking reasonable prospects of success.
ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the applicant was denied procedural fairness.
Legislation: Migration Act 1958 (Cth) ss 425, 425A, 426A, 426B, 441A, 441C, 474
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.02, 21.04
Cases cited: BCJ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 464
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: General Number of paragraphs: 21 Date of hearing: 12 October 2023 Place: Sydney Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 729 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BCJ21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
12 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application for an extension of time within which to seek review of the Registrar’s decision of 1 June 2023 be refused.
2.The application filed on 22 September 2023 seeking review of the Registrar’s decision of 1 June 2023 be dismissed.
3.The applicant pay the first respondent’s costs of the application for review filed on 22 September 2023 fixed in the amount of $1,000.
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 CAMERON
INTRODUCTION
The applicant is a citizen of China who arrived in Australia on 1 February 2016. On 7 March 2017 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”) [alleging that he feared persecution in China because he had been detained and beaten by police following a scuffle with a local official. On 7 April 2017 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Administrative Appeals Tribunal (“Tribunal”) for review of that departmental decision. He was unsuccessful before the Tribunal, which dismissed his application for non-appearance on 22 March 2021 and affirmed that decision on 12 April 2021. The applicant then applied to this Court for judicial review of the Tribunal’s decisions.
The Minister contended that the applicant’s application had no reasonable prospects of success and applied for it to be summarily dismissed, relevantly, pursuant to r.13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“Rules”). The Minister’s application was heard and granted by a registrar on 1 June 2023: BCJ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 464. The registrar’s orders were:
1. The application for judicial review filed 28 April 2021 be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2. The applicant pay the first respondent’s costs fixed in the amount of $4,189.38.
On 22 September 2023 the applicant filed an application for review of the registrar’s decision. These reasons concern that application.
EXTENSION OF TIME
Rule 21.04 of the Rules requires that review of a registrar’s decision proceed as a hearing de novo. However, before the Court reaches that point, regard should be had to r.21.02 of the Rules, which provides that an application for review of a registrar’s decision must be made within seven days of that decision. In this case, the application for review of the registrar’s decision should have been made no later than 8 June 2023. However, it was, in fact, filed on 22 September 2023 which the Minister today advises me is 106 days late. It may also be described as approximately three and a half months late.
The threshold issue for the Court is whether the applicant should be granted leave to commence this proceeding out of time, as is provided for in r.21.02(2) of the Rules. In deciding that question, in this case the following matters are relevant:
(a)first, whether the applicant has a satisfactory explanation for the delay in commencing the proceeding;
(b)secondly, the seriousness of the delay; and
(c)thirdly, whether, were time to be extended, the substantive application for judicial review would have sufficient prospects of success that it should be considered at a final hearing.
Another consideration which would ordinarily be relevant to the matter in question is whether the respondent would suffer prejudice as a result of the matter being allowed to commence late, but I am advised that the Minister does not make that submission.
Satisfactory explanation for the delay
The applicant said from the bar table, and was not challenged on what he said, that he commenced the proceeding late because he had poor English language skills and needed to “ask around”. When pressed, the applicant advised the Court that he had nothing more substantive to say.
What the applicant has told the Court does not amount to an explanation of a delay of three and a half months because it does not explain why his accepted lack of facility in English prevented him from bringing the review application earlier than he did. One can accept that a person whose first language is not English and who is unfamiliar with the court system in Australia would be at a disadvantage and might well and unavoidably not be able to comply with time limits prescribed by the Rules or the Act, but the applicant has not provided a detailed explanation of that sort. He has not satisfied me that he has a satisfactory explanation for the delay in commencing the proceeding.
Seriousness of the delay
The applicant conceded that the delay in question was a serious one and I agree, given that a review application must be made and decided as promptly as possible.
Prospects of success of the substantive application
The final issue which the Court should consider is whether the prospects of the application for judicial review have sufficient merit that the application should be considered at a trial.
For the reasons which follow, I do not think they do.
In a judicial review proceeding, such as this would be, the Court cannot rehear an applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Legislation and Rules
The Act relevantly provided at the time of the Tribunal’s decision:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
…
425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2)The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
…
…
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a)is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(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.
Reinstatement of application or confirmation of dismissal
(1B)If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
(1C)On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a)if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or
…
…
(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.
(1F)If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
…
426BFailure to appear—Tribunal’s decisions, written statements and notifying the applicant
Decisions to which this section applies
(1)This section applies in relation to the following decisions (each of which is a non‑appearance decision):
(a)a decision to dismiss an application under paragraph 426A(1A)(b);
…
Written statement of decision
(2)If the Tribunal makes a non‑appearance decision, the Tribunal must make a written statement that:
(a)sets out the decision; and
(b)sets out the reasons for the decision; and
(c)in the case of a decision to reinstate an application:
(i)sets out the findings on any material questions of fact; and
(ii)refers to the evidence or any other material on which the findings of fact were based; and
(d) records the day and time the statement is made.
(3) A non‑appearance decision is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(4)The Tribunal has no power to vary or revoke a non‑appearance decision after the day and time the written statement is made.
Notice to applicant
(5)The Tribunal must notify the applicant of a non‑appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is taken to have been made; and
(b)by one of the methods specified in section 441A.
(6)In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).
…
…
441AMethods by which Tribunal gives documents to a person other than the Secretary
…
(5)Another method consists of a member or an officer of the Tribunal transmitting the document by:
…
(b) email; or
(c) other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
…
…
441CWhen a person other than the Secretary is taken to have received a document from the Tribunal
(1)This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA).
…
Transmission by fax, email or other electronic means
(5)If the Tribunal gives a document to a person by the method in subsection 441A(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
…
The proceeding in this Court
In his application commencing this proceeding the applicant alleged:
1. My case was not properly considered by the Tribunal according to law.
2. I didn't have the procedure fairness for my review application especially for the current pandemic situation.
3. AAT should give me another chance and didn't consider that I was sik and couldn't attend the interview.
4. I hope I can be given another chance and arranged to have another interview date for my review at the AAT.
In that application, the applicant identified the decision he was seeking to have reviewed as the confirmation decision of the Tribunal made on 12 April 2021. Annexed to his affidavit in support of his application filed 28 April 2021 and affirmed 21 February 2021 were the two decisions of the Tribunal relevant to his visa application. It is therefore not clear of which decision the applicant seeks review, but that is something which need not, in the circumstances, be clarified. The allegations pleaded by the applicant in his application do not engage with the basis for either of the Tribunal's decisions. Specifically, he has not sought to demonstrate that the procedures by which the Tribunal determined his review application were erroneous.
Consideration
The applicant has referred to the COVID-19 pandemic and alleged that he was unwell, but has not sought to prove those allegations by evidence and he has not called into question the effectiveness or lawfulness of the Tribunal’s procedural steps leading to its decisions as recorded in the Court Book, which was Exhibit A in this proceeding. It should also be observed that the allegations in the application were not particularised and so lack material substance.
The Court Book reveals the following chain of events:
(a)the applicant was invited, in apparent compliance with ss.425, 425A and 441A of the Act, to a Tribunal hearing which he did not attend. On 22 March 2021 the Tribunal dismissed the application for review under s.426A(1A)(b) of the Act;
(b)with the decision record of 22 March 2021, sent the same day by email to the applicant, was an information sheet which explained how to reinstate the review and how that had to be done within 14 days of the applicant receiving the dismissal decision;
(c)that communication was apparently also effected in accordance with s.441A(5) of the Act and, by virtue of s.441C(5) of the Act, those documents are taken to have been received by the applicant at the end of 22 March 2023;
(d)consequently, under s.426A(1B) of the Act the applicant had until 6 April 2021, 5 April 2021 being Easter Monday, to seek reinstatement;
(e)the applicant did not do that, so the Tribunal was obliged under s.426A(1E) of the Act to confirm its original decision; and
(f)on 12 April 2021 which was 21 days after the applicant had been advised of the original decision, the Tribunal made its decision to confirm the dismissal of the application for review and thus affirmed the Minister’s decision to refuse the applicant the visa he sought.
Absent any evidence to contradict what the Court Book appears to record, I find the matters I have recited to be facts. I also find specifically that the Tribunal complied with s.441A of the Act when sending documents to the applicant.
CONCLUSION
No jurisdictional error is disclosed by those uncontested facts. Consequently, the registrar was correct to dismiss the application on the ground that it had no reasonable prospects of success.
Finding that the application for judicial review lacks reasonable prospects of success and having regard to the conclusions expressed earlier in these reasons lead me to conclude that it would not be appropriate to extend the time within which to bring this proceeding and so the application for leave to bring it out of time, made instanter at the hearing today, will be refused. Consequently, the application to this Court filed on 22 September 2023 to review the registrar’s decision of 1 June 2023 will be dismissed.
COSTS
As the application is to be dismissed, the Minister has sought an order for his costs. There is nothing in the conduct of this proceeding or anything which has been put to me which suggests the costs should not follow the event as they would in the ordinary course. The Minister seeks an amount of $1,000 for his costs of this application for review of the registrar’s decision made on 1 June 2023, when an order for the costs of that part of the proceeding in the amount of $4,189.38 was also made. I am satisfied that the amount presently sought by the Minister is reasonable and that, aggregated with the earlier costs order, the total costs are not unreasonable.
Consequently, in addition to the order dismissing the application for review of the registrar’s decision, I order that the applicant pay the first respondent’s costs of the application for review filed on 22 September 2023, fixed in the amount of $1,000.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 2 November 2023
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