BCX20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 333
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BCX20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 333
File number: MLG 872 of 2020 Judgment of: JUDGE CHAMPION Date of judgment: 1 May 2023 Catchwords: MIGRATION – Extension of time application – s. 477(2) – non-appearance before the Tribunal – Applicant filed application to this Court 974 days out of time – Interests of the administration of justice – Failure to provide adequate explanation – Extensive delay in filing application – Grounds of the proposed substantive judicial review application lack sufficient merit to warrant an order extending time – Application dismissed. Legislation: Migration Act 1958 (Cth) ss. 412, 414, 425, 425A, 426, 426A, 441A, 477 Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC (2006) 150 FCR 439
MZABP v The Minister for Immigration and Border Protection [2015] FCA 1391
SZMNO v The Minister for Immigration and Citizenship [2009] FCA 797
SZQRU v The Minister for Immigration and Citizenship [2012] FCA 1234
SZSDA v The Minister for Immigration and Citizenship [2012] FCA 1319
SZTES v The Minister for Immigration and Border Protection [2015] FCA 719
Division: Division 2 Family Law Number of paragraphs: 51 Date of last submissions: 1 May 2023 Date of hearing: 1 May 2023 Place: Melbourne Applicant In-person Solicitor for the First Respondent: Mr Daly ORDERS
MLG 872 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BCX20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CHAMPION
DATE OF ORDER:
1 May 2023
THE COURT ORDERS THAT:
1.The application filed 13 March 2020 be dismissed.
2.The applicant pay the respondents’ costs fixed in the sum of $4,189.38.
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 CHAMPION:
INTRODUCTION
This is an application filed on 13 March 2020 (Application) for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) of 15 June 2017. On 15 June 2017, the Tribunal made a decision under s. 426A(1E) of the Migration Act 1958 (Cth) (Act) by which it confirmed its decision earlier made to dismiss the application pursuant to s. 426(1A)(b) of the Act after the applicant, notwithstanding an earlier invitation to appear, failed to attend his scheduled hearing before the Tribunal.
The applicant is a citizen of Malaysia and arrived in Australia on 21 December 2014.
The applicant lodged an application for a protection visa because he feared the Malaysian police would find or imprison him due to his membership in a political group, namely the Bersih Movement, an organisation that seeks to reform the political system in Malaysia: CB36.
On 21 March 2017, a delegate of the Minister (Delegate) refused to grant the application for a visa.
TRIBUNAL DECISION
On 23 March 2017, the applicant applied to the Tribunal for review of the Delegate’s decision. (CB67-68). The applicant gave an email address for contact purposes.
By letter dated 28 April 2017 sent to that email address, the Tribunal invited the applicant to attend a hearing before the Tribunal on 31 May 2017: (CB82-88). In this email invitation, the applicant was asked to inform the Tribunal if he was not able to attend the hearing. The communication expressly warned the applicant that if he did not attend the scheduled hearing, then the Tribunal could dismiss his application without further consideration of his application or the material before it: (CB84).
The applicant did not respond to the Tribunal’s hearing invitation and did not appear before the Tribunal at the hearing on 31 May 2017.
The Non-appearance Decision
Section 426A applies if an applicant is invited to appear before the Tribunal and if the applicant 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.
Section 426A(1A) of the Act is as follows:
Tribunal may make a decision on the review or dismiss proceedings
(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.
On 31 May 2017 because the applicant did not appear before the Tribunal, the Tribunal proceeded under s. 426(1A)(b) to dismiss the review application without further consideration: that is, it made the non-appearance decision. Its decision was as follows and is set out at (CB98):
The applicant was invited under s. 425 of the Migration Act 1958 (Act) to appear before the Tribunal on 31 May 2017 at 9.30 am but did not appear at the scheduled time and place. As no reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or information before the Tribunal.
The Tribunal emailed its non-appearance decision to the applicant on 31 May 2017 (CB96). The email attached an information sheet (CB99). The information sheet set out that if the applicant did not seek reinstatement of his application within a 14 day period then the Tribunal would be required to confirm its decision to dismiss the application (CB99-100).
The Confirmation Decision
Section 426(1E) of the Act is as follows:
(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.
There was no evidence that the applicant or anyone on his behalf applied for reinstatement of his application between 31 May 2017 and 14 June 2017 being the 14-day period mentioned in 426A(1B). On 15 June 2017, because of s. 426A(1E), the Tribunal confirmed its decision to dismiss the application: (CB103-104). After 31 May 2017, and the notification to him of the non-appearance decision, the applicant did not apply for reinstatement or otherwise contact the Tribunal.
On 15 June 2017 because of s. 426(1E) the Tribunal confirmed its decision to dismiss the application: (CB103-104). The Tribunal held that it was bound to confirm its non-appearance decision in the absence of an application for reinstatement of the application: s. 426A(1E); (CB104).
JUDICIAL REVIEW APPLICATION
On 13 March 2020 the applicant filed an application seeking an extension of time in which to seek judicial review of the Tribunal’s decision dated 15 June 2017. He did not seek judicial review of the non-appearance decision made on 31 May 2017.
The applicant’s originating application under a heading “Grounds of Application” contains seven grounds. The published record of these reasons will set out those grounds as they appear in the originating application 1 to 7 with some amendments for apparent typographical and/or spelling errors. I do not propose to read grounds 1 to 7 now. The grounds are as follows:
1.THE ADMINISTRATIVE APPEALS TRIBUNAL MADE DECISION ON MY APPLICATION BY DISMISSING AND NOT TO GRANT ME A PROTECTION VISA ON 15 JUNE 2017 AFTER ME NOT ATTENDING THE HEARING TO PRESENT ARGUMENTS AND EVIDENCES FOR MY CLAIMS
2.I WAS TOTALLY UNAWARE ABOUT THE HEARING THAT THE RESULT WILL BE DECISION FINALISING MY APPLICATION WITH A REFUSAL BUT NOT GIVING A CHANCE REINSTATEMENT. I THAN CONTACTED THE TIBUNAL TO PHONE AND SEEK CONSENT BUT WAS NEVER TAKEN TO CONSIDERATION AND SAID THAT THEY HAVE NO MORE JURISDICTION.
3.THE TRIBUNAL DID NOT INVESTIGATE BUT AFFIRMED THAT I DID NOT MEET THE PROTECTION VISA OBLIGATION AND MEET THE CRITERIAN OF REFUGEE. ACCORDING TO MIGRATION ACT 1958 THE DEPATMENT OF IMMIGRATION HAS NOTIFY ME THAT I HAVE SUBBITTED A VALID APPLICATION AND ALSO WHEN I SUBMITTED TO TRIBUNAL FOR REVIEW THE TRIBUNAL ACKNOLEDGED MY APPLICATION AS VALID.
4.ACCORDING TO MIGRATION ACT 1958 – SECT 414, TRIBUNAL MUST REVIEW THE CASE IN MATTER ACORDINGLY WHEN THE APPLICATION IS LODGED VALID UNDER THE SECTION 412 AND MAKE A DECISION THAT HAS TO HAVE FAIRNESS BUT IN MY MATTER TRIBUNAL DID NOT MUCH DO INVESTIGATION IN-ORDER TO GIVE A CONCLUDED DECISION. I THINK THAT TRIBUNAL DID NOT FOLLOW THE ACT.
5.I WAS NOT GIVEN A CHANCE TO MAKE AN ASSESSMENT IN RELATION TO s5H(2) TO DEFINE s5H(1) OF THE ACT AND TO PROVIDE THE EVIDENCES FOR MY CLAIM AND PRESENT MY ARGUMENTS TO VALID MY APPLICATION FOR PROTECTION VISA WITH A HEARING AFTER A DIRECTION WHICH WHAT I ATTENDED THAT DAY.
6.THEREFORE, THE DECISION MADE IS NOT FAIR TO ME BECAUSE I DID’NT GET THE RIGHTS TO PRESENT MY ARGUMENTS AND PROVIDE EVIDENCES TO PROVE OF MY CLAIM ACCORDINGLY.
7.I SEEK THE COURT FOR JUDICIAL REVIEW BEEN GIVEN AGAIN FOR MY CASE.
[Apparent typographical and/or spelling errors are as in the Applicant’s Original application]
CONSIDERATION
An application for judicial review “must be made to the court within 35 days of the date of the migration decision”: s. 477(1) of the Act. The court may extend that 35 day period “if it is satisfied that it is necessary in the interests of the administration of justice to make the order”: s. 477 (2).
Legal Principles
In BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [40], Jagot and Halley J held that the Court has an obligation “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”.
Also, in BTI15 Logan J at [25] had noted that the primary judge’s observation that: “the matters to which regard may be had are not expressly confined by the act” was “unquestionably correct”. Matters which are “usually relevant”, but not exhaustive, in an application for an extension of time include: the extent of the delay and explanation for it; any prejudice to the respondent if an extension were granted; the impact on the applicant if the time is not extended; the interests of the public at large; and the merits of the substantive application.
I deal with those matters insofar as they are relevant in turn.
Extent of the Delay
As to the extent of the delay, the confirmation decision was made on 15 June 2017. The application in this court was filed on 13 March 2020. The application was therefore filed some 974 days out of time: that is a period approaching three years out of time. The respondent described that delay as “unwarrantable”. I agree.
As to the explanation for the delay, in the applicant’s statement of grounds in his originating application as to why it is necessary in the interests of the administration of justice to extend the time, the applicant said that he did not have a lawyer (ground 1), he had no knowledge of court procedure (ground 2) and that he was in a situation of financial hardship and without a job (ground 3).
A lack of legal representation is not in itself a sufficient excuse for failing to lodge an application within the 35 day timeframe: SZQRU v The Minister for Immigration and Citizenship [2012] FCA 1234 at [24] per Katzmann J.
Ignorance of applicable time limits is not generally considered to be a satisfactory reason for missing a deadline to file a judicial review application. See SZSDA v The Minister for Immigration and Citizenship [2012] FCA 1319 at [38] per Foster J.
Finally, on the authorities, financial constraints are not ordinarily an acceptable explanation for the delay: SZMNO v The Minister for Immigration and Citizenship [2009] FCA 797 at paragraphs [24]-[26].
Prejudice
Whilst the first respondent asserts no prejudice beyond the public interest in finality of decision making, the mere absence of prejudice is not enough to justify an order to extend time: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [349].
Impact on the Applicant
In circumstances in which the applicant seeks a protection visa, I accept that the denial of an extension of time has a substantial impact on the applicant.
Merits of the Proposed Application for Judicial Review
As to the merits of the applicant’s substantive application, in MZABP v The Minister for Immigration and Border Protection [2015] FCA 1391 at [62]-[63], Mortimer J, as her Honour then was, noted that the approach taken under s. 477(2) should not be transformed into a de facto full hearing.
I am permitted to proceed impressionistically. It will however seldom be in the interests of the administration of justice to extend time unless the ground is “arguable,” “reasonable arguable,” “sufficiently arguable,” or, “has reasonable prospects of success”. In SZTES v The Minister for Immigration and Border Protection [2015] FCA 719, Wigney J noted at [49] that “it is generally inappropriate to fully investigate the merits of the substantive case, though obvious strengths or weaknesses may be a factor for or against extending time”.
The Grounds of Review
In my view, none of the seven grounds of review give rise to a sufficiently arguable case to warrant an extension of time, particularly in the context of no satisfactory explanation for the delay having been offered. I propose to mention each of the grounds of review briefly.
Proposed Grounds 1 and 7
Grounds 1 and 7 are descriptive. They do not raise any allegation of jurisdictional error.
Proposed Ground 2
Having not appeared on 31 May 2017 and then not applied for reinstatement of his application, this judicial review application is framed by s. 426A(1A)(b) and s. 426(1E) of the Act.
As to proposed Ground 2 the applicant states that he was: “unaware about the hearing that the result will be a decision finalising my application with a refusal but not giving a chance of reinstatement. I then contacted the Tribunal to phone and seek consent [but was informed] that they have no more jurisdiction.”
The material before the court is as follows:
(a)On 28 April 2017 the applicant was invited to a hearing. The invitation complied with the applicable legislative requirements (CB82-88);
(b)The letter notifying the applicant of the nonappearance decision informed him that he could apply to the Tribunal for reinstatement of his review application within 14 days (i.e., by 14 June 2017) (CB97);
(c)The Tribunal did not make its confirmation decision until 15 June 2017: that is, the day after the expiry of the period in which the applicant could apply for reinstatement of his application.
The first respondent submits, and I agree, that there is no evidence to support any contention that he contacted the Tribunal at any stage in the period 31 May 2017 – 14 June 2017.
In his oral submissions to the court today, the applicant appeared to accept that he made no contact with the Tribunal in that timeframe. Insofar as the applicant’s judicial review application alleges jurisdictional error on the basis of the alleged contact with the Tribunal after 14 June 2017, particularly having regard to the terms of s. 426(1E) of the Act, in my view, the applicant’s judicial review application does not have sufficient prospects of success to warrant an extension of time.
Proposed Ground 3
In proposed Ground 3 the applicant states that the Tribunal “did not investigate but affirmed that he did not meet the protection visa obligation”. However, this is ground is misconceived as the Tribunal’s decision to dismiss the application was for non-appearance and the confirmation decision was because of the applicant’s failure to apply for reinstatement. In the circumstances of dismissal for non-appearance and failure to apply for reinstatement of the application, the absence of further investigation does not give rise to any reasonably arguable jurisdictional error.
The applicant put some apparent weight on the departmental notification to him that he had submitted a valid application. The first respondent does not dispute that there was a valid application. The fact that there was a valid application does not give rise to an arguable jurisdictional error as to as to the Tribunal’s application of s. 426(1A)(b) and s. 426(1E) in the circumstances of this case.
Proposed Ground 4
Proposed ground 4 refers to ss. 412 and 414 of the Act. Proposed ground 4 appears to aim to agitate ground that having lodged a valid review application, the Tribunal had an obligation of substantive investigation and its failure to conduct a substantive investigation gave rise to a jurisdictional error.
Section 412(1) set certain prerequisites for review applications to the Tribunal. The applicant’s review application complied with s. 412. Section 414(1) provides “if a valid application is made under s. 412 for review [...] the Tribunal must review the decision”.
The following detailed provisions of Part 7 prescribe the scope and conduct of the Part 7 review process, including, relevantly, s. 426(1A) which prescribes how the Tribunal may proceed if an applicant fails to appear and s. 426(1E) which prescribes how the Tribunal must proceed if the applicant fails to apply for reinstatement having failed to appear at his scheduled application.
The references to ss. 412 and 414 do not assist the applicant in the circumstances of this case.
Proposed Ground 5 and 6
Proposed ground 5 is that “I was not given a chance to make an assessment in relation to s. 5H(2) to define s. 5H(1)”. Proposed ground 6 is that “the decision made is not fair to me because I didn't get the rights to present my arguments.”
The applicant was afforded the “chance” and the “right” to present his arguments but did not take up the opportunity that he was afforded. The Tribunal’s hearing invitation complied with the applicable legislative requirements: ss. 425, 425A of the Act.
Having complied with ss. 425 and 425A of the Act, the Tribunal was not required to take additional steps or make further inquiries to ensure the applicant was aware of the scheduled hearing or to enable him to appear.
I am assisted by the observations of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [38]-[39]. In that case, at paragraph 39, the court referred to an earlier decision in VNAA. The Full Court held that it was clear that ss. 425 and 425A of the Act were to be read together. The court held that the Tribunal, having complied with one of the methods prescribed in s. 425A in respect of a notice of invitation to appear given to the applicant for a scheduled hearing of the Tribunal, the Tribunal was, “under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant”.
In this case, the applicant submitted to me that he did not receive the email which was transmitted to the email address he had provided to the Tribunal by way of his application on 23 March 2017. I note that I have some concern as to that submission given that it remains the email address that the applicant is using in his application to the court. Nonetheless, it is ultimately immaterial because s. 425A(2)(a) of the Act in respect of a notice of invitation to appear prescribes that the notice must be given to the applicant by one of the methods specified in s. 441A.
Section 441A(5)(b) of the Act prescribes that the Tribunal may transmit a document to an individual by email. In these circumstances, I am satisfied that the Tribunal dispatched both the invitation to appear at the initial hearing on 21 May 2017 and the subsequent information sheet as to the applicant’s right to apply for reinstatement of his application to the very email address the applicant had provided to the Tribunal with his application on 23 March 2017.
The applicant had made no contact of any kind with the Tribunal to advise the Tribunal that he was not checking emails which were received by that email address. In all the circumstances, I am satisfied that the Tribunal was under no further obligation to discover if there might be some other avenue of communicating with the applicant.
CONCLUSION
The applicant has not offered any satisfactory explanation for a protracted delay. Further, he has not persuaded me that his case is sufficiently arguable to warrant an extension of time.
The application filed 13 March 2020 for an extension of time will be dismissed. I will make a further order that the applicant pay the respondents’ costs fixed in accordance with the relevant scale in the amount $4,189.38.
I certify that the preceding fifty (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 1 May 2023
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