BEW23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 156
•13 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BEW23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 156
File number(s): SYG 753 of 2023 Judgment of: JUDGE GIVEN Date of judgment: 13 February 2025 Catchwords: MIGRATION – Review of decision by Registrar summarily dismissing judicial review application – application made out of time – extension of time refused Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 254, 256
Migration Act 1958 (Cth) s 494C
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.02, 21.03, 21.04
Migration Regulations 1994 (Cth) reg 4.31
Cases cited: AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426
AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44
Bechara v Bates (2021) 286 FCR 166
Lamb v Sherman (2023) 298 FCR 79
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
Division: General Federal Law Number of paragraphs: 28 Date of last submission/s: 31 July 2024 Date of hearing: Determined in Chambers The Applicant: Unrepresented Solicitor for the Respondents: Mr K Eskerie, Sparke Helmore Lawyers ORDERS
SYG 753 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BEW23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
13 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The purported application for review made, out of time, on 4 July 2024 is dismissed.
3.In addition to order 2 made on 2 May 2024, the applicant must pay the first respondent’s costs and disbursements of and incidental to the application referred to in order 2 above, fixed in the sum of $1,600.
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 GIVEN:
Before the Court is a purported[1] application for review of orders made by a Registrar of the Court on 2 May 2024 (review application), summarily dismissing the applicant’s application for judicial review pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). That judicial review application sought review of a decision of the (then) Administrative Appeals Tribunal (Tribunal) by which it found that it did not have jurisdiction to review a decision of a delegate of the first respondent because it had not been made within a prescribed time and in circumstances where the Tribunal had no discretion to extend that time.
[1] See [9] to [10] below
PROCEDURAL BACKGROUND
These proceedings initially commenced by an application to show cause filed by the applicant on 8 May 2023, and were initially placed in the central migration docket.
On 24 May 2023, the first respondent filed a Response which sought, inter alia, an order that the proceedings be summarily dismissed pursuant to r 13.13 of the Rules (summary dismissal application).
On 30 January 2024, procedural orders were made by a Registrar of the Court (January orders). On 3 April 2024, certain of the January orders were vacated by another Registrar who proceeded to list the summary dismissal application for hearing before him (by Microsoft Teams)[2] at 2:15pm Australian Central Standard Time on 2 May 2024, and new orders made for the filing of written submissions and evidence by the parties in respect of the summary dismissal application. On 12 April 2024, the first respondent filed written submissions as ordered. The applicant did not file any documents in respect of the summary dismissal application in time, or at all.
[2] Presumably as the Registrar would be presiding from South Australia and the proceedings were commenced in the Sydney Registry
On 2 May 2024, the parties appeared before the Registrar (again by Microsoft Teams) for the hearing of the summary dismissal application. The first respondent was represented by a solicitor and the applicant was unrepresented.[3] At the conclusion of the summary dismissal hearing, the Registrar made the following orders:
1.The application for judicial review 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.
[3] The Court file indicated that the applicant did not request an interpreter
On 4 July 2024, the applicant filed the review application together with an Affidavit, made by him (July Affidavit), in support thereof.
On 10 July 2024, the review application was docketed to me, and I made the following orders:
1. By 4:00pm on 17 July 2024 any party who elects for the application for review of a Registrar’s decision filed on 4 July 2024 (review application) to proceed to an oral hearing must notify the Court of that preference by email to the chambers of Judge Given at: [email protected], following which the matter will be listed for a hearing at a date to be advised.
2. In the event that no election is made pursuant to order 1, the parties are taken to have consented to the review application being heard and determined in chambers in its current form pursuant to, and for the purposes of, s 136(4)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3. The applicant must file and serve an outline of written submissions in relation to the review application, including any application for an extension of time (EOT) pursuant to 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (GeneralFederal Law) Rules 2021 (Cth), by 4:00pm on 24 July 2024.
4. The first respondent must file and serve an outline of written submissions in relation to the review application and any EOT, by 4:00pm on 31 July 2024.
5. In the event that the applicant fails to comply with order 3 above:
a. order 4 above is vacated, and in lieu thereof the first respondent may file any written submission, including if only limited to the issue of costs; and
b. judgment is reserved to a time, and method, to be notified to the parties.
6. Otherwise, judgment is reserved from the date upon which the first respondent files written submissions pursuant to order 4 above to a time, and method, to be notified to the parties.
(July orders).
No election was made pursuant to order 1 of the July orders. The first respondent filed written submissions on 31 July 2024 as ordered. The applicant has not filed documentation since 4 July 2024, in accordance with the July orders, or at all.
LEGISLATION
Section 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act) has the effect that a party to a proceeding in which the Registrar has exercised delegated powers under s 254 may apply to the Court for review of the exercise of that delegated power, within a prescribed time. In that respect, rr 21.02 and 21.03 provide for the following:
Time for application for review
(1) For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.
(2) The time prescribed by subrule (1) may be extended in a proceeding:
(a) by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or
(b) with the consent of the parties to the proceeding.
Application for review
(1) An application for review of an exercise of power by a Registrar must be in accordance with the approved form.
(2) An application must be listed for a hearing as soon as possible and, unless it is impractical to do so, within 14 days after the date of filing.
(3) The applicant must serve a sealed copy of the application on each other party to the proceeding within 7 days after it is filed.
(4) Unless the Court or a Registrar otherwise orders, the application does not operate as a stay of the exercise of the power under review.
The applicant did not apply to the Court for review within the prescribed timeframe. Despite this, by the review application the applicant also did not formally seek an extension of time. However, at [2] of the July Affidavit, the applicant says the following (errors in original):
I am an Indian citizen applied for the Protection visa under refugee Convention. The delegate of the Minister refused to grant my visa. I applied to the Tribunal for review of the decision. The Tribunal refused to consider my appeal because the application was not lodged within the prescribed time limit. I applied for judicial review, but the Hon. Registrar Cummings dismissed my on motion date. I was not represented by any solicitor or barrister, therefore I was not fully aware of time limit. I required extension of time for Application for review.
Given that the application for judicial review was made[4] to this Court on the last day on which to do so, made within time. Accordingly, the reference in [2] of the July Affidavit to requiring “an extension of time for Application for review”, can only logically be understood as being an acknowledgment by the applicant that he has become aware that his review application is out of time. While not expressly requested, I am of the view that the aforementioned statement in the July Affidavit is sufficient to constitute an application by the applicant for the time in which his review application can be made to be extended up to, and including, 4 July 2024.
[4] As opposed to the date on which it was accepted for filing: see Lamb v Sherman (2023) 298 FCR 79 at [54] per Rares, Rofe and Downes JJ
Principles regarding extension of time
In AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426, this Court relevantly held the following in respect of applications for extension of time in review applications at [12] and [15]:
[12] I am also prepared to accept the applicant’s submission outlined above as being an oral application for an extension of time. In other applications for extension of time in this jurisdiction, for example, under s 477 of the Migration Act 1958 (Cth) (Act), there are no mandatory statutory criteria for assessing whether to extend time, other than whether it is in the interests of the administration of justice to do so. Similarly, r 21.02 of the Rules does not prescribe any criteria for the exercise of the Court’s discretion to extend time in the review of a Registrar’s decision (noting that r 21.02(2)(a) provides that the Court may do so on any terms it thinks fit, or if the parties consent.
…
[15] In the absence of prescribed statutory criteria, I am of the view that the matters which relevantly arise to inform the exercise of the Court’s discretion to extend time under r 21.02 might include those which are commonly considered in an application under s 477 of the Act, such as:
(a) the period of delay;
(b)the explanation for it, noting that given that the time period in r 21.02 is brief indeed, and the general principle that the longer the delay, the more persuasive the explanation for it must be (see Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] per Wigney J), but that the seven-day period will require a proper explanation in the event that it is not met; and
(c) any prejudice to the parties.
Period of delay
In the instant case, any application for review of the Registrar’s summary dismissal orders ought to have been made 9 May 2024. The application, made on 4 July 2024 is therefore approximately 2 months out of time, being double the time period in AHH22 (supra), and more than 8 times the period prescribed by the Rules. The length of the delay weighs against time being extended.
Explanation for the delay
As to the explanation for the delay, the first respondent says that the applicant:[5]
…appears to acknowledge the delay (but does not provide any explanation for it).
[5] First respondent’s written submissions filed 31 July 2024 at [4]
That submission seemed to ignore that, by the July Affidavit, an explanation was proffered, namely that the applicant was not legally represented and was unaware that there was a time limit in which to make the review application. However, the first respondent later, in a footnote, submits the following:[6]
The Minister notes that at paragraph [2] of the supporting affidavit made on 4 July 2024, the applicant suggests he was not aware of the time limit because he was not legally represented. That is not a satisfactory explanation, and it is well established that it is the responsibility of an applicant to ascertain their review rights and any applicable time limits: SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33].
[6] First respondent’s written submissions filed 31 July 2024 at footnote 1
I agree with, and accept, that submission. Further, it is curious that the applicant did not seek to ascertain (sooner than he did) that there was a time limit given that:
(a)being out of time in applying to the Tribunal was the basis upon which the Tribunal found itself without jurisdiction; and
(b)he had managed to file his application to this Court on the last day on which to do so, which suggests he knew of (or ascertained) the requisite period in that instance.
Overall, I am not persuaded that the applicant has provided a reasonable explanation for his delay in seeking review of the Registrar’s decision. This also weighs against time being extended for the review.
Prejudice
In terms of the prejudice to the applicant, in circumstances where he has elected not to advance any further evidence or submissions for his review application, the applicant is silent on this issue. However, the Court can take judicial notice of the fact that, if time were not extended for the applicant to seek review of the Registrar’s decision, these proceedings remain at an end for him with potentially significant consequences to his migration status. By contrast, aside from the interests of the finality in public decision making,[7] and any costs incurred, there is no specific prejudice to the first respondent if the review application was allowed to proceed by reason of time being extended. Accordingly, this factor on its face weighs as skewing in the applicant’s favour and towards time being extended. However, an ultimate assessment of prejudice should wait until consideration is given to whether the originating application is reasonably arguable.
[7] Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [15] at [17] per McHugh J
Merits of the application
The first respondent’s submissions as to the substantive merits of the applicant’s application are set out in the written submissions filed on 12 April 2024 in support of the summary dismissal application.
As noted above, by his judicial review application, the applicant sought review of a decision of the Tribunal in which it found that it had no jurisdiction in the matter. The basis of the Tribunal’s decision was that the applicant had not applied for review within 28 days of being notified of the delegate’s decision, as required by reg 4.31(2) of the Migration Regulations 1994 (Cth) and s 494C of the Migration Act 1958 (Cth).
The first respondent submits, and I agree, that the applicant was validly notified of the delegate’s decision. Accordingly, even at a very impressionistic level, there appears to be no conceivably arguable error in the Tribunal’s finding that it had no jurisdiction. As such, the application appears to lack a real prospect of succeeding.
By his review application, the applicant says that the Tribunal’s decision was “fundamentally influenced [sic]” because it did not receive evidence from the applicant at hearing.
The first respondent submits that this statement misunderstands the basis of the Tribunal’s decision and that the Tribunal was not obliged to invite the applicant to a hearing in circumstances where its jurisdiction was not enlivened: SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 (SZEYK) at [34] to [35] per Bennett J. Even taking the statement from the review application as seeking to give rise to a ground of review in the substantive judicial review application, that would also not appear to enjoy a sufficient prospect of success.
To the extent that, by the review application, the applicant seeks orders remitting the decision to the Tribunal, that is not the question before the Court at this juncture. The Court would, if time were to be extended, be hearing the summary dismissal application afresh to determine on a critical examination of the available material if there is a real question of law or fact which should be decided at trial: AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44 at [36] to [37] per Deputy Chief Judge Mercuri. Further, and given that this Court’s task is a review de novo (see r 21.04 of the Rules) such that I would hear the summary dismissal application again, the applicant’s complaints regarding the hearing before the Registrar, and the suggestion that it was procedurally unfair, are not relevant. The Court would not, if time were to be extended, be reviewing the decision of the Registrar for error: see Bechara v Bates (2021) 286 FCR 166 per Allsop CJ, Markovic and Colvin JJ at [24].
CONCLUSION
The delay in this matter is, relative to the period prescribed by the Rules, both significant and not reasonably explained. Given that the review application does not appear to enjoy a reasonable prospect of success, the question of prejudice also weighs against time being extended.
In all the circumstances of this case, in the exercise of my discretion, the time in which to bring the review application should not be extended and, therefore, the review application is incompetent and should be dismissed. I will so order.
COSTS
As noted above at [7], a timetable was put in place for the parties to file written submissions in respect of the review application. The first respondent, as the party bearing the onus of persuading this Court on any review application that the proceedings should be summarily dismissed, was ordered to file submissions first. The first respondent complied with that order, following which the applicant did not avail himself of the opportunity to respond thereto. Therefore, the applicant has been aware of the first respondent’s costs position in respect of the review application and can be taken to have elected not to make submissions on that topic either.
In the event that the review application was dismissed, the first respondent sought an order for costs in the fixed amount of $1,600.00. In all the circumstances of this application, I am satisfied that costs should follow the event and that the amount sought is reasonable. Accordingly, I will make an order to that effect also. Those costs are in addition to the costs order made by the Registrar at the time he summarily dismissed the proceedings.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.
Associate:
Dated: 13 February 2025
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