BDD20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 534
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BDD20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 534
File number(s): MLG 885 of 2020 Judgment of: JUDGE J YOUNG Date of judgment: 23 June 2023 Catchwords: MIGRATION – extension of time application – applicant filed 463 days out of time – applicant did not attend hearing before Tribunal – applicant did not apply for reinstatement before Tribunal – found no reasonable explanation for delay – found grounds of substantive argument are not reasonably arguable – application dismissed. Legislation: Migration Act 1958 (Cth) ss 425, 425A, 426(1A)(b), 426A, 426A(1A)(b), 426A(1E), 426B(5), 441A, 441A(5), 441C(5), 476A(3)(a), 477(2)
Migration Regulations 1994 (Cth) reg 4.35D(3)
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439
Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491
SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tran v Minister for Immigration & Border Protection [2014] FCA 533
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 31 May 2023 Place: Melbourne Counsel for the First Applicant: Self-represented litigant Counsel for the Second Applicant Did not participate Counsel for the First Respondent: Ms Petrovski of Sparke Helmore Lawyers ORDERS
MLG 885 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BDD20
First Applicant
BDE20
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE J YOUNG
DATE OF ORDER:
23 June 2023
THE COURT ORDERS THAT:
1.The Application filed 12 March 2020 be dismissed.
2.The applicants pay the costs of the first respondent 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).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
IN SUMMARY
Before the Court is an Application filed on 12 March 2020 for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek a judicial review of the decision of the second respondent (Tribunal) dated 31 October 2018 confirming its decision to dismiss an application under s 426(1A)(b) of the Act.
The Application was filed 463 days after the expiry of the statutory timeframe. Not being satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the Application is dismissed. The reasons for this decision follow.
CONTEXT
The first applicant (applicant) is a citizen of China.
On 27 April 2015 the applicant entered into Australia on a Tourist (FA-600) visa.
On 5 June 2015 the applicant applied for a Protection (XA-866) visa (visa). The applicant’s husband (second applicant) applied as a member of the same family unit, with no separate claims.
On 31 March 2016 a delegate of the first respondent (delegate) refused to grant the visa.
On 12 April 2016, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant provided the email address “[email protected]” (applicant’s email address), and the mobile number “xxxxx xxx14” (applicant’s mobile) in the application for review.
On 27 September 2018, the Tribunal emailed the applicant inviting the applicant and second applicant to attend an in-person hearing on 16 October 2018 at 1.30pm. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicants did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it. The applicant did not respond to the hearing invitation.
The applicants did not attend the hearing on 16 October 2018. Pursuant to s 426(1A)(b) of the Act, the Tribunal dismissed the application for non-appearance (dismissal decision).
On 16 October 2018 the Tribunal sent a copy of the dismissal decision to the applicant’s email address. The notification letter sent with the dismissal decision informed the applicants that reinstatement of the application could be sought by 30 October 2018. The applicants were also provided with an information sheet entitled “information about dismissal of applications” which informed the applicants that if reinstatement was not sought within 14 days the Tribunal must confirm the decision to dismiss the application.
The applicants did not apply for reinstatement of the application and did not contact the Tribunal after being notified of the non-appearance decision.
On 31 October 2018 the Tribunal confirmed its original decision to dismiss the application (confirmation decision).
The Tribunal’s decision
Dismissal decision
The Tribunal found that the applicants were invited pursuant to s 425 of the Act to appear before it on 16 October 2018 at 1.30pm but did not appear at the scheduled time and place. The Tribunal found that no reason for the non-appearance was given. The Tribunal dismissed the application without further consideration of the application or the information before it.
Confirmation decision
On 31 October 2018, the Tribunal found that the applicants had been notified of the dismissal decision and had been given a copy of the written statement and reasons in accordance with s 426B(5) of the Act. The applicants had been advised that reinstatement of the application could be sought within 14 days of receiving the dismissal decision and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision. The Tribunal found that as the applicants did not apply for reinstatement within the 14 day period it must confirm the decision to dismiss the application.
APPLICATION FOR AN EXTENSION OF TIME
Was the Application filed late?
Section 477(1) of the Act requires that an Application to this Court be made within 35 days of the date of the migration decision.
The Tribunal’s confirmation decision was made on 31 October 2018. An Application for judicial review of that decision in this Court was required to be filed by 5 December 2018. The Application for judicial review was not filed until 12 March 2020.
Accordingly, the Application was made 463 days after the expiry of the statutory timeframe.
At the hearing of this matter before the Court, the applicant appeared on behalf of both applicants and was assisted by a Mandarin interpreter.
At the commencement of the hearing, the applicant was asked to confirm whether the applicants had received the court book filed by the first respondent on 7 March 2023. The applicant claimed not to be sure as to whether the applicants had received the court book, saying they had moved house at the end of April 2023. The evidence before the Court is that on 9 March 2023 the court book was sent to the applicants by express post to the address for service provided by the applicants in the Application filed 13 March 2020. This was therefore some considerable time before the applicants moved house. However, even if it be the case that the applicants did not receive the court book posted to them, the further evidence before the Court is that on 20 March 2023 an electronic version of the court book was sent to the applicants to the email address provided by the applicants in the Application filed 13 March 2020. The applicant confirmed at the hearing that the email address to which the electronic court book had been sent was the correct email address. Accordingly, the Court is satisfied that the applicants were provided with the materials relied upon by the first respondent.
Should the Court be satisfied to make an order extending time?
Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an Application must be made if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an Order.
The Act does not specify any criteria which must be satisfied to establish that it is in “the interests of the administration of justice” to grant an extension.
The principles regarding an Application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that decision, Jagot and Halley JJ found 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”.[1] Further, they identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:
(1)the extent of the delay and explanation for it;
(2)any prejudice to the respondent if an extension were granted;
(3)the impact on the applicant if the time was not extended;
(4)the interests of the public at large; and
(5)the merits of the substantive Application.
[1]BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 [40]
In the Application filed 12 March 2020, the applicants stated the following with respect to why they say it is necessary in the interests of the administration of justice to extend time (without alteration):
(1)I recently became to know that the dismissal by the Tribunal without considering my case is reviewable in FCC.
(2)I recently became to know that the Tribunal’s failure to consider our claims before the Department’s decision and our evidence is reviewable in FCC.
(3)We are in need of protection in Australia.
(4)We are afraid of being persecuted when return to China.
At the hearing of this matter, the applicant was invited to elaborate and, relevantly, provided the following for the Court’s consideration:
(a)The applicants did not see the email from the Tribunal advising of the confirmation decision;
(b)As soon as the applicants realised that the confirmation decision had been made they sought assistance to lodge the Application in this Court.
Delay and explanation
The delay is of a significant period of time, being a period in excess of one year, specifically 463 days. The Court has, in other cases, described a delay of 74 days as “substantial” and a delay of 54 days as likely to be fatal to an Application for an extension of time where there is no reason for the delay: WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14]; and WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].
Typically the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] (Tran). The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of long delay: Tran at [38].
At the hearing, the applicant confirmed that the reasons for the delay were those set out in paragraphs [23] and [24] above.
The applicant has not offered a plausible or acceptable explanation for the delay in making this Application and this weighs against the granting of an extension of time.
Firstly, ignorance by an applicant as to a right of review and the applicable time frames is generally not a satisfactory explanation for a delay in lodgement: SZSDA V Minister for Immigration & Citizenship (2012) 135 ALD 17 at [38].
Secondly, attached to the Tribunal’s decision was an information sheet headed “Information about decisions – MR Division”. That information sheet contained the following information:
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time
Accordingly, the applicants were provided with information regarding their right of review and the time frames that applied to it.
Thirdly, the applicant’s assertions as to their need for protection and fear of persecution are in no way an explanation for the delay in seeking judicial review in this Court.
Fourthly, both the dismissal decision and the confirmation decision were sent to the applicants’ email address. The applicants were thereby notified of the decisions by one of the methods specified in s 441A of the Act, namely, transmitting it by email to their nominated email address, being the last email address provided to the Tribunal in connection with the review as required by s 441A(5) of the Act. Pursuant to s 441C(5), in those circumstances, the applicants are taken to have received the decisions at the end of the day on which they were transmitted.
The very lengthy delay and the absence of a satisfactory and acceptable explanation for it weighs heavily against the grant of an extension of time. Indeed, given the length of the delay and the lack of any satisfactory explanation for it, this would be sufficient basis upon which to refuse to extend time.
Prejudice
The first respondent properly did not contend it would suffer any particular prejudice (save as to costs) if the applicants were granted an order allowing an extension of time.
However, the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].
I assess this as a neutral consideration.
Public interest and impact on the applicant
There is a public interest in ensuring that decisions of the Executive are made lawfully. The merits of the substantive grounds relied upon by the applicant, which are considered below, will of course be relevant to this.
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; 177 ALR 491 at [15]-[17].
As to the impact upon the applicants, if the extension of time is refused then the Tribunal’s decision will stand. Although an alternative route of review might be available, under s 476A(3)(a) of the Act the refusal of an explanation for an extension of time forecloses any right of appeal. MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, at [65].
I accept that a refusal to grant an extension of time would result in the applicants returning to their country of nationality which is a circumstance they say they fear and that this is a matter weighing in favour of the grant of an extension of time.
Merits of the substantive application
While the discretion of the Court is broad, the Court should not permit an Application to proceed if it is bound to fail, and should accordingly decline to extend time.
The substantive Application provides for four grounds as follows (without amendment):
(1)The Tribunal failed to consider the applicant’s claim on the face of existing evidences provided to the department.
(2)The Tribunal failed to consider the validity of certificate issued under s438.
(3)The Tribunal failed to notify the applicants that there was a s438 certificate in their file.
(4)The Tribunal failed to conduct hearing by telephone when the applicants failed to appear physically
At the hearing the applicant said that the Tribunal confirmed the decision of the delegate and the applicants had not received the first respondent’s invitation to attend a hearing. The decision of the first respondent was therefore unfair. The applicant said they wanted a fair decision and the protection of the Australian government.
As the Court attempted to explain to the applicant at the hearing, the Application before the Court was for judicial review of the Tribunal’s decision to dismiss their application and whether an extension of time ought be granted for review of that decision. The Court did not have jurisdiction to review the first respondent’s decision to refuse the applicants a protection visa. Further, the reasons given for the dismissal decision and the confirmation decision were that the applicants failed to attend the hearing before the Tribunal (for review of the first respondents refusal to grant them a protection visa) at the scheduled time and place, and that the applicants did not subsequently seek reinstatement.
I am not persuaded that the grounds of the substantive Application are reasonably arguable for the following reasons.
Ground one
Firstly, as to ground one, it is true that the Tribunal did not consider the applicants’ claims or evidence. However, no error is disclosed by the Tribunal in not doing so. Under s 426A of the Act, when an applicant is properly invited to attend a hearing but fails to do so, s 426A(1A)(b) empowers the Tribunal to dismiss the application without further consideration of the application or information before it. The Tribunal was therefore not required to consider the applicants’ protection claims.
The Tribunal’s hearing invitation complied with the relevant legislative requirements in s 425A because it:
(1)gave the applicants notice of the day, time and place of the scheduled hearing;
(2)gave the applicants notice by one of the methods specified in s 441A of the Act, namely, transmitting it by email to their nominated email address, being the last email address provided to the Tribunal in connection with the review as required by s 441A(5) of the Act;
(3)gave a period of notice that was at least the prescribed period, being 14 days after the date of receipt of the notice: reg 4.35D(3) of the Migration Regulations 1994 (Cth). As the hearing invitation was sent by email, the applicant was taken to have received it at the end of the day on which it was transmitted: s 441C(5) of the Act. The applicants were notified of the hearing on 12 April 2017 and were therefore given 35 days’ notice of the scheduled hearing; and
(4)contained a statement of the effect of s 426A of the Act.
As the applicants were validly invited to a Tribunal hearing, the Tribunal was entitled to dismiss the application by reason of the applicants’ failure to attend the hearing: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 at [5].
Further, the Tribunal’s exercise of the power in the present case was reasonable because the applicants had been properly notified of the hearing, informed as to the consequence of failing to attend, and no reason for non-appearance was given nor a request for an adjournment made.
Additionally, the applicants were properly notified of the dismissal decision and did not file for reinstatement of the application within 14 days. Therefore, the Tribunal was required to confirm the dismissal decision by s 426A(1E) of the Act.
Accordingly, there is no reasonably arguable jurisdictional error by the Tribunal in relation to ground one of the substantive Application.
Ground two and three
Grounds two and three refer to a s 438 certificate. At the hearing the applicant said they had not been shown the s 438 certificate and therefore could not comment on it. They said they had included grounds two and three in the Application on the advice of a friend, it seemed reasonable at the time and they could not explain it further. The applicant could not identify what the s 438 certificate was or to what it referred, nor pursuant to which Act it was said to have been issued or how it was presently relevant.
The Tribunal makes no reference to this certificate in either the dismissal decision or the confirmation decision, nor is such a certificate present in the material before the Court.
Accordingly, there is no reasonably arguable jurisdictional error by the Tribunal in relation to ground two or three of the substantive Application.
Ground four
By ground four, the applicants assert that the Tribunal failed to conduct a hearing by telephone when the applicants failed to attend the hearing. As I understand this submission, the applicants contend that the Tribunal acted unreasonably in dismissing the application without seeking to contact the applicants by telephone first. I reject that submission.
Firstly, there is no obligation upon the Tribunal to make any inquiry as to the failure on the part of the appellant to appear. NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR at [21]; Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [38]-[39].
Secondly, the Tribunal’s exercise of discretion to proceed without attempting to contact the applicants was reasonable.
In Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57 (Lieu) CJ Mortimer said at [82]:
Legal unreasonableness involves a “necessarily stringent” test: SZVFW at [11] (Kiefel CJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [108] (Gageler J). It involves a conclusion by the Court on review that “that ‘no sensible [Tribunal] acting with due appreciation of its responsibilities’ could have taken” the decision that was made, or exercised the power in the way it was exercised: SZVFW at [69] (Gageler J), citing Li at [71] (Hayne, Kiefel and Bell JJ), quoting Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064.
In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [69] (SZVFW) Gageler J said:
Where the Tribunal is satisfied that the statutory procedure contemplated by s 425 for inviting the applicant for review to appear before it has been followed and where the applicant without explanation fails to appear, the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under s 426A(1) to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with the applicant. Ordinarily, it could not later be said on judicial review that "no sensible [Tribunal] acting with due appreciation of its responsibilities" could have taken that course.
In circumstances where the Tribunal had sent a hearing invitation to the applicants which was not returned to sender, there had been no contact from the applicants outside of the lodgement of their application and the applicants had failed to attend their interview with the delegate, the decision to proceed without attempting to contact the applicants was reasonable. It was a course plainly within the range of possible acceptable outcomes: EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 at [22] and it cannot not be said no sensible Tribunal acting with due appreciation of its responsibilities could have taken that course: Lieu at [82]; (SZVFW) at [69].
Further, in circumstances where the Tribunal was required to confirm the dismissal decision by s 426A(1E) of the Act, the confirmation decision was also reasonable.
For completeness, in relation to ground four, at the hearing the applicant said they did not know that there was to be a “teleconference”. Despite its best efforts, the Court was unable to clarify to what “teleconference” the applicant referred to. The Tribunal’s hearing invitation sent to the applicants was for the applicants to attend a hearing in person at the Sydney Registry and provided as follows:
You are invited to appear before the Administrative Appeals Tribunal (the Tribunal) to give evidence and present arguments relating to the issues in your case. We have arranged a hearing for:
Date: 16 October 2018
Time:1:30pm (NSW time) To allow for the hearing to commence on time you should arrive at least 30 minutes before the start of your hearing and report immediately to the reception counter. Registration and preparation for the hearing will begin at this time.
Location: Level 6, 83 Clarence Street, SYDNEY NSW 2000
Interpreter: Please advise us at least 7 days before the hearing if you require an interpreter
Note:Applicants should bring their passport(s) (if available) to the hearing.
Further, attached to the hearing invitation was a document entitled “Information about hearings – MR Division”, which includes information about what a hearing is, whether the applicants can bring anyone with them to the hearing and what happens on the day of the hearing.
Accordingly, ground four discloses no reasonably arguable jurisdictional error on behalf of the Tribunal.
CONCLUSION
The Application in this case is 463 days outside the statutory timeframe. The Court may only grant an extension of the time within which the Application was to be made if satisfied such extension is in the interests of the administration of justice.
Weighing all of the considerations above, I am not satisfied it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review. The Application is dismissed.
The Application will be dismissed with an order that the applicants pay the first respondent’s costs in the scale amount of $4,189.38.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 23 June 2023
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