BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 176

Federal Circuit and Family Court of Australia

(DIVISION 2)

BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176

File number:

MLG 756 of 2022

Judgment of:

JUDGE KENDALL

Date of judgment:

9 March 2023

Catchwords:

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – extension of time application – insignificant delay – inadequate explanation – no prejudice – no arguable case of jurisdictional error – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss 359, 363A, 424, 424C, 425, 425A, 426A,441A, 441C, 476 & 477 and Parts 5 & 7

Migration Regulations 1994 (Cth), reg 4.35D

Cases cited:

ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744

ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099

Bala v Minister for Immigration & Border Protection [2019] FCA 600

Craig v State of South Australia (1995) 184 CLR 163

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Hasran v Minister for Immigraton and Citizenship [2010] FCAFC 40

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103

M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247

Manna v Minister for Immigration & Citizenship [2013] FCA 400

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268

MZABP v Minister for Immigration & Border Protection [2015] FCA 1392

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391

Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901

SZMNO v Minister for Immigration and Citizenship [2009] FCA 797

SZNZL v Minister for Immigration and Citizenship [2010] FCA 621

SZQLJ v Minister for Immigration & Citizenship [2011] FMCA 932

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319

Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28

Division:

Division 2 General Federal Law

Number of paragraphs:

107

Date of hearing:

24 February 2023

Place:

Perth

Applicants:

The applicants appeared in person

Counsel for the First Respondent:

Ms A O’Grady

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Minter Ellison Lawyers

ORDERS

MLG 756 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BHG22

First Applicant

BHH22

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE KENDALL
DATE OF ORDER:	9 MARCH 2023

THE COURT ORDERS THAT:

1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) (as amended on 24 February 2023) 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 KENDALL:

Background

1. The first and second applicants are male and female citizens of Malaysia (respectively) (Court Book (“CB”) 138-164 & 168-194).  They are in a de facto relationship (CB 25). They arrived in Australia in March 2016 as the holders of Electronic Travel Authority (Class UD) (Subclass 601) visas (CB 46 & 75).

2. On 10 June 2016, the applicants applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) with the assistance of a migration lawyer (CB 23-205).

3. On 20 April 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 259-274). The delegate was not satisfied that there was a real chance that the first applicant would face serious harm on account of his “involvement and dispute with gangsters”. Further, the delegate considered that the first applicant would be able to seek protection from the relevant authorities. The delegate also refused to grant the second applicant the visa (CB 270).

4. On 22 April 2017, the applicants lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the “Tribunal”) (CB 257-258). In that application, the applicants provided both a postal address and an email address under the “[c]orrespondence details” section of the application form (CB 258).

5. On 28 April 2017, the second applicant wrote to the Tribunal (via email sent from the same email address as was included in the review application) to advise of a “change [of] residential address” (CB 275).

6. On 4 July 2021 and 4 August 2021, the Tribunal wrote to the applicants (via email) requesting that they provide the Tribunal with a mobile phone number (CB 284-285).

7. No response was received by or for the applicants.

8. On 6 December 2021, the Tribunal invited the applicants (via email) to provide information pursuant to s 424 of the Migration Act 1958 (Cth) (the “Act”) (CB 289-298). Relevantly, that letter stated (CB 290):

   The information should be received by 20 December 2021. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

   If you cannot provide the information by 20 December 2021, you may ask us for an extension of time in which to provide the information. If you make such a request, it must be received by us by 20 December 2021 and you must state the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments. 

9. On 22 December 2021, the Tribunal invited the applicants (via email) to attend a hearing before it on 14 January 2022 at 9.00am (WA time) (CB 299-311).

10. The applicants did not attend the hearing scheduled for 14 January 2022 (CB 312-315). The Tribunal dismissed the application for non-appearance pursuant to s 426A(1A)(b) of the Act (the “Non-Appearance Decision”) (CB 321-322). The applicants were notified of that decision (and advised of their right to apply for reinstatement) by letter sent that same day via email (being on 14 January 2022) (CB 316-320). That letter stated (CB 317):

    You may apply to us, in writing, for reinstatement of the application by 28 January 2022. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.

11. The applicants did not seek reinstatement.

12. On 1 February 2022, the Tribunal confirmed the Non-Appearance Decision made on 14 January 2022 (the “Confirmation Decision”) (CB 325-326). By virtue of s 426A(1F) of the Act, the delegate’s decision was taken to be affirmed.

13. On 7 April 2022, the applicants applied to this Court for judicial review of the Tribunal’s decision (CB 1-7). Unfortunately, that application was filed outside of the 35-day time limit specified in s 477 of the Act.

14. Accordingly, the applicants require an extension of time to pursue the substantive proceeding in this Court.

15. This judgment addresses whether an extension of time should be granted.  For the reasons that follow, the Court concludes that an extension of time should not be granted.

    Consideration

16. The materials before the Court include the application for an extension of time within which to make an application for judicial review filed by the applicants on 7 April 2022, the affidavit of the first applicant sworn on 5 April 2022 and filed in this Court on 7 April 2022 (taken as read and in evidence), a court book numbering 327 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 10 February 2023 and the affidavit of service of Cassandra Felice Toni Polese affirmed and filed on 17 February 2023 (also taken as read and in evidence) (the “Polese affidavit”).

17. The Court notes that on 5 July 2022, procedural orders were made by Registrar Carney of this Court giving the applicants an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicants.

18. The applicants appeared before this Court without legal representation.  They were assisted by an interpreter in the Mandarin language.

19. The applicants appeared at the hearing with a hard copy of the Court Book.  However, they indicated that they had not been able to “access their emails for some time” and, as such, had not received the Minister’s written submissions. Based on the contents of the Polese affidavit, the Court was satisfied that the applicants had been properly served with the Minister’s submissions. The Court proceeded with the hearing but asked Ms O’Grady (the Minister’s representative) to summarise the Minister’s submissions for the applicants (with the assistance of the interpreter) and to do so in detail. The Court was satisfied that the contents of the submissions were properly explained to the applicants at the hearing before this Court (on 24 February 2023) and that the applicants were, accordingly, able to engage with the Court and respond to the Minister’s submissions as needed.

20. The Court noted that the application for an extension of time to seek judicial review filed by the applicants only sought relief by way of an order quashing the Tribunal’s decision. It did not seek a writ of mandamus that the matter be remitted. As such, this Court’s jurisdiction under s 476 of the Act was not properly invoked. The Court explained this oversight to the applicants and made an order amending the application for judicial review to include the seeking of a writ of mandamus. This is now the preferred approach in this Court in relation to unrepresented applicants: Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103 per Judge Given at [25]-[35].

21. The Court also noted that the applicants had not sought review of the Non-Appearance Decision. Rather, they had only asked for a review of the Confirmation Decision. The Court explained to the applicants why this was an issue and, with their consent, made an order amending the application for judicial review to also include the seeking of review of the Non-Appearance Decision.

22. Noting that the applicants were not legally represented, the Court also explained to them that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decisions.

23. In this matter, the Tribunal’s Non-Appearance and Confirmation Decisions are dated 14 January 2022 and 1 February 2022 respectively. The dates by which the applicants were required to file their application in this Court were 18 February 2022 (in relation to the Non-Appearance Decision) and 8 March 2022 (in relation to the Confirmation Decision). Unfortunately, the applicants did not file their substantive application until 7 April 2022. Hence, the delays here are 48 days in relation to the Non-Appearance Decision and 30 days in relation to the Confirmation Decision.

24. The Court explained that, despite the late filing of a substantive application for judicial review, applicants can ask the Court for an extension of time within which to file their substantive application.

25. In this regard, the Court notes that, pursuant to s 477(2) of the Act:

    (a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and

    (b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.

26. Here, the applicants requested an extension of time in writing and provided “grounds” explaining why they believe that the extension should be granted. Section 477(2)(a) of the Act is thus satisfied.

27. In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.

28. Noting that the applicants appeared without any legal assistance, the Court explained to them that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:

    (a)the length of delay;

    (b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;

    (c)whether the explanation for the delay is adequate; and

    (d)whether the proposed substantive application for judicial review has “merit”.

29. In relation to (d) above, it was further explained that when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”).

30. The Court invited the applicants to address each of the factors outlined above and highlight anything they considered relevant to the applicants’ request for an extension of time. The applicants’ responses are discussed in the consideration that follows.

    Length of Delay

31. As outlined above (at [23]), the delays in this matter are 48 days in relation to the Tribunal’s Non-Appearance Decision and 30 days in relation to the Tribunal’s Confirmation Decision.

32. In the Court’s view, the delays here are not significant.

33. This weighs in favour of granting the extension of time.

    Prejudice

34. It was conceded by Minister’s representative (in written submissions filed in this Court on 10 February 2023) that the Minister does not face any significant prejudice.

35. This also weighs in favour of granting the extension of time.

    Explanation

36. Here, the applicants’ “grounds” for an extension of time provide (without alteration) (CB 4):

    1.We were confused by the AAT’s decision and it was difficult to access to proper legal advice to find out what steps could we take because we did not have a lawyer to advise us.

    2.We were only made known later that we could seek for exemption on court fees due to financial hardship, as initially we thought that we could not afford the court fees due to our own financial conditions.

37. To the extent that the applicants are claiming that they could not access legal advice or did not have a lawyer to advise them, the Court notes that there is no right to legal representation in migration proceedings: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099. Nor is a lack of legal representation a sufficient explanation alone for an extension of time: Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 at [27], [32] & [36]; Manna v Minister for Immigration & Citizenship [2013] FCA 400 at [17]. Further, the applicants did not require the assistance of a lawyer to commence proceedings in this Court. In fact, when the applicants ultimately filed their review application, they did so (seemingly) without the assistance of a lawyer.

38. Insofar as the applicants claim that they did not file on time because they were confused by the Tribunal’s decision and were unsure of what was required of them, the Court sympathises. Ignorance, however, is no excuse. In that regard, it is noted that in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, the Federal Court explained as follows:

    38.In the present case, there is no satisfactory explanation for the delay.  Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay.  Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.

39. Applicants seeking review of a decision made by the Tribunal must take the necessary steps to ensure that they do what is required of them. The applicants here do not appear to have done that. There is no evidence here, for example, that the applicant sought assistance from the Court or the Tribunal about what was required of them.

40. To the extent that the applicants claim that they did not file their application for judicial review because they were struggling financially and were unable to afford filing fees, while the Court is sympathetic to the plight of all applicants who appear before this Court in similar circumstances, the Court also notes that claimed impecuniosity is not an acceptable explanation for failing to lodge a judicial review application on time: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]–[26] per Barker J. There is also no evidence that the applicants contacted the Court registry to discuss this issue or to seek any advice or assistance in this regard.

41. The Court does not consider that the explanations provided by the applicants are satisfactory. This weighs against granting an extension of time.

    Merits

42. The most critical factor for consideration when determining whether an application for an extension of time ought to be granted is whether the proposed application for judicial review has any “arguable prospect of success”.

43. In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):

    17.French J's observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.

    18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

1. Noting that the applicants were unrepresented, the Court gave them an opportunity to elaborate on the substantive “grounds of review” (set out in the application for judicial review filed by the applicants) and to outline any other concerns that they might have in relation to the Tribunal’s decisions. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].

2. To assist the applicants, the Court explained to them that the only issue before the Court was whether there is an arguable case that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:

   (a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;

   (b)where the decision-maker ignores relevant material: Craig at 198;

   (c)where the decision-maker ignores relevant material: Craig at 198;

   (d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];

   (e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

   (f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

3. It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

4. Against this background, the applicants stated that they had not received any correspondence from the Tribunal and told the Court that the Tribunal “could have called [them]”.

5. These issues will be considered below.

   The Tribunal’s decisions

6. In order to determine whether the proposed application for judicial review has “merit”, it is useful to first set out the Tribunal’s decisions.

   Non-Appearance Decision

7. The Non-Appearance Decision dated 14 January 2022 provides (CB 321-322):

   1.On 6 December 2021 the Tribunal wrote to the review applicant pursuant to s 424(2) of the Migration Act 1958 (Cth) (the Act) inviting them to provide information in relation to his application. The information sought related to the applicant’s current circumstances and claims for protection. The invitation stated that if the Tribunal did not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. The invitation also highlighted that the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. No response to this invitation was received.

   2.Notwithstanding the applicant’s failure to respond to the invitation, the Tribunal exercised its discretion to invite the applicant to a hearing pursuant to s 425 of the Act.

   3.Accordingly, the applicant was invited under s 425 of the Act to appear before the Tribunal on 14 January 2022 at 9:00 am (WA time). The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.

   4.The review applicant did not respond to the hearing invitation and has not engaged with the Tribunal about the review process since their application for review was lodged on 22 April 2017.

   5.No request for an adjournment was received. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place.

   6. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5) of the Act and the invitation has not been returned to sender.

   7. When the review applicant failed to appear, the Tribunal was unable to contact the applicant as they had not provided a mobile number in their review application. Records indicate that the Tribunal sent the applicant emails to request their mobile number on 4 July 2021 and 4 August 2021. The applicant did not respond to the request to provide their mobile number. There is no record of the review applicant contacting the Tribunal by any other means at the scheduled time to explain why they had not appeared before the Tribunal. No satisfactory reason for the non-appearance has been given.

   8.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.

   Confirmation Decision

8. The Confirmation Decision dated 1 February 2022 provides (CB 325-326):

   APPLICATION FOR REVIEW

   1.This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection on 20 April 2017 to refuse to grant the visa applicants protection visas under the Migration Act 1958 (Cth) (the Act).

   2.On 14 January 2022 the Tribunal dismissed the application under s 426A(1A)(b) of the Act as the applicants did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.

   3.The applicants were 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 applicants were 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 at the time of decision, no application for reinstatement has been received by the Tribunal.

   5.As the applicants 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 decisions under review are taken to be affirmed.

   DECISION

   6.        The Tribunal confirms the decision to dismiss the application.

   Proposed application for judicial review

9. The application for judicial review filed by the applicants on 7 April 2022 contains three proposed “grounds of review” as follows (without alteration) (CB 4):

   1.Jurisdictional errors are found in the decision made by the Tribunal to dismiss our application.

   2.The Tribunal claimed that there was a scheduled hearing where we were absent. In fact, there was no invitation nor notifications about the hearing, and we were confused to be told later that our absence had led to the dismissal of our application.

   3.As such, we had lost our chance to narrate our circumstances to the Tribunal, and such irresponsible actions by the Tribunal was unfair to us as applicants.

   Ground 1

10. Ground 1 provides:

    1.Jurisdictional errors are found in the decision made by the Tribunal to dismiss our application.

11. The ground itself is not clear and does not raise any issue of jurisdictional error or any issue of the sort that this Court can address. The applicants were also unable to provide any clarification or expand on this proposed ground of review at the hearing before this Court.

12. No arguable case of jurisdictional error arises in relation to ground 1.

    Grounds 2

13. Grounds 2 provides:

    2.The Tribunal claimed that there was a scheduled hearing where we were absent. In fact, there was no invitation nor notifications about the hearing, and we were confused to be told later that our absence had led to the dismissal of our application.

14. Essentially, the applicants claim by proposed ground 2 that they did not receive any hearing invitation and were unaware of the Tribunal hearing. These claims were repeated by the applicants in oral submissions at the hearing before this Court (on 24 February 2023).

15. As outlined above, the applicants did not attend the Tribunal hearing which was scheduled for 14 January 2021 (CB 312-315).

16. In those circumstances, the Tribunal dismissed the application for review pursuant to s 426A(1A)(b) of the Act (CB 321-322).

17. In the circumstances, the Court must consider whether the applicants were properly invited to appear before the Tribunal.

18. The Tribunal was required to invite the applicants to attend a hearing before it pursuant to s 425 of the Act, which provides:

    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.

    (2)       Subsection (1) does not apply if:

    (a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

    (b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

    (c)       subsection 424C(1) or (2) applies to the applicant.

    (3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

19. On 22 December 2021, the Tribunal invited the applicants (via email) to attend a hearing before it, scheduled to take place on 14 January 2022 (CB 299-311).

20. Section 425A of the Act sets out the necessary requirements of such an invitation and, relevantly, provides:

    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

    (b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

    (3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

    (4) The notice must contain a statement of the effect of section 426A.

21. Here, the invitation to attend the hearing:

    (a)was addressed to the applicants (CB 300);

    (b)clearly indicated the date, time and means by which the applicants could attend that hearing (being on 14 January 2022 at 9.00am (and the applicants were notified of the hearing start time and also asked to attend at the Tribunal by 8.45am (WA time)) and providing the applicants with the address for the Tribunal’s Perth registry) (CB 300): s 425A(1) of the Act;

    (c)was sent to the applicants via email (a method approved by s 441A(5)(b) of the Act) to the applicants’ nominated email address on 22 December 2021 (CB 299) and, as a result of s 441C(5) of the Act, the applicants were taken to have received the notice at the end of that day: s 425A(2)(a) of the Act;

    (d)was given to the applicants 23 days prior to the scheduled hearing, exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth) (being 14 days after the day the person receives the notice): s 425A(3) of the Act; and

    (e)contained a statement describing the effect of s 426A of the Act and what would happen if the applicants did not attend the hearing (CB 302): s 425A(4) of the Act.

22. For completeness, the Court notes that, where a document was sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter – where the invitation was sent via email), the applicants are “taken to have received that document” at the time specified in s 441C of the Act (in this case, at the end of the day it was transmitted, being 22 December 2021), regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36].

23. The Court is satisfied that the Tribunal complied with the requirements set out in s 425A of the Act. The applicants were properly invited to attend the hearing.

24. No arguable case of jurisdictional error arises in relation to ground 2.

    Ground 3

25. Ground 3 states:

    3.As such, we had lost our chance to narrate our circumstances to the Tribunal, and such irresponsible actions by the Tribunal was unfair to us as applicants.

26. Essentially, the Court understands ground 3 to be a complaint that it was unfair or unreasonable of the Tribunal to exercise its discretion to dismiss the applicants’ matter for non-appearance.

27. As outlined by this Court in ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744, before the Tribunal can exercise its discretion under s 426A of the Act, an applicant must have been properly invited (under s 425 of the Act) to appear before it. Further, ss 425 and 425A of the Act are to be read together: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 (“SZFHC”) at [39]. That is, if s 425A of the Act has not been complied with, a valid notice of invitation has not been sent and the Tribunal’s powers under s 426A of the Act will not be enlivened.

28. As set out above (in relation to proposed ground 2), the Court is satisfied that the applicants in this matter were properly invited to appear at the Tribunal hearing as required by ss 425 and 425A of the Act.

29. As the applicants had been invited to attend a hearing, but failed to appear at that hearing, s 426A of the Act was enlivened. Relevantly, that section provides:

    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:

    (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.

    Note 1:Under section 430A, the Tribunal must notify the applicant of a decision on the review.

    Note 2:Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

30. The applicants did not appear at the hearing on 14 January 2022. They do not dispute this.

31. In the circumstances, two options were available to the Tribunal. It could either proceed to determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act) or it could dismiss the applicants’ application without any further consideration (pursuant to s 426A(1A)(b) of the Act).

32. In this matter, the Tribunal chose to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act).

33. The Tribunal’s decision to exercise its powers in this regard is discretionary. As such, that decision must be made “reasonably”.

34. In the circumstances of this matter, the Court is satisfied that the Tribunal acted reasonably. Relevantly:

    (a)the hearing invitation was sent to the applicants by email at their nominated email address and there was no evidence before the Tribunal to suggest that the applicants had not received that invitation (for example, there was no email delivery failure notice received) (CB 299);

    (b)the second applicant wrote to the Tribunal (from the applicants’ nominated email address) on 28 April 2017 (CB 283);

    (c)after that email from the second applicant (referred to at (b) above), the applicants did not engage or make contact with the Tribunal;

    (d)no further material had been provided to the Tribunal by the applicants in support of their review application;

    (e)the applicants did not appear at the Tribunal hearing at the scheduled time of 9.00am (WA time) on 14 January 2022 (CB 312-315); and

    (f)the Tribunal waited nearly six hours (until 2.43pm on 14 January 2022) before determining that the applicants were not going to appear at that hearing and before the Tribunal member ultimately made the Non-Appearance Decision (CB 322).

35. The Court is satisfied that the Tribunal acted reasonably in proceeding to dismiss the applicants’ application pursuant to s 426A(1A)(b) of the Act.

36. No arguable case of jurisdictional error arises in relation to proposed ground 3.

    Oral submissions

37. As outlined above, in oral submissions before this Court, the applicants claimed that they had not received any invitation to a hearing before the Tribunal and complained that the Tribunal “could have phoned [them]”.

38. The issue of whether the applicants were properly invited to attend a Tribunal hearing has been addressed by the Court above (in relation to proposed ground 2).

39. To the extent that the applicants suggest that the Tribunal could have, or should have, phoned them, the Court disagrees.

40. As this Court recently explained in Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901 (citing Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268), where an invitation to attend a hearing has been sent and complies with the requirements set out in s 425A of the Act, there is no obligation on the Tribunal to consider other ways in which the applicants can be notified of the scheduled hearing: SZFHC at [39]. This is further reinforced by amendments to the wording of s 425 of the Act, which previously required that the Tribunal provide an applicant with an “opportunity” to appear. The current provision only requires that the Tribunal “invite” the applicant to appear: SZFHC at [41].

41. While it is unusual for the Tribunal not to extend the curtsy of a phone call to those who are expected to appear before it, Court is satisfied that the applicants were validly invited to attend a hearing. The Tribunal was thus not required to consider other ways to contact the applicants (including by telephone).

42. No arguable case of error arises in this regard.

    Otherwise

43. In its duty to assist self-represented litigants, the Court has considered for itself whether any arguable case of error arises in the Tribunal’s decision (as per the decision in MZAIB).

44. In this regard, the Court will consider the following issues:

    (a)whether any arguable case of error arises in the Tribunal’s Confirmation Decision; and

    (b)whether the Tribunal exceeded its jurisdiction by inviting the applicants to attend a hearing.

    Whether any error arises in the Tribunal’s Confirmation Decision

45. To the extent that any concern is raised in relation to the Tribunal’s Confirmation Decision, the Court notes that applicants were notified of the Non-Appearance Decision on 14 January 2022 (via email) (CB 316-322).

46. In relation to any procedural fairness concerns that the applicants might have regarding the Confirmation Decision, it is noted that when the applicants were advised that their application had been dismissed, they were advised that they could seek reinstatement within 14 days of receiving notice of the Non-Appearance Decision (CB 317). This complied with s 426B(6) of the Act.

1. The applicants did not apply for reinstatement.

2. Section 426A(1E) of the Act provides:

   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.

3. In circumstances where no application for reinstatement was made, the Tribunal was required to confirm the decision to dismiss the applicants’ application and did so. The Tribunal provided a written statement to that effect, in the form of the Confirmation Decision, on 1 February 2022 (CB 325-326).

4. No arguable case of error arises in relation to the Tribunal’s procedural fairness obligations in this regard.

   Whether the Tribunal exceeded its jurisdiction by inviting the applicants to attend a hearing

5. The Court notes that the Tribunal wrote to the applicants on 6 December 2021 inviting them to provide information pursuant to s 424(2) of the Act (CB 289-298).

6. The applicants did not respond to that invitation.

7. If an applicant is invited under s 424(2) of the Act to give information but fails to do so, he or she may lose the right to attend a Tribunal hearing: Hasran v Minister for Immigraton and Citizenship [2010] FCAFC 40.

8. As a consequence of the interaction between ss 424, 424C and 425 of the Act, if an applicant fails to respond to an invitation under s 424 of the Act, the consequence will be to attract the cascading operation of ss 424C((1) and 425(2)(c). Ultimately, the result is that the applicant would no longer be entitled to appear before the Tribunal to present his or her case (see, generally, M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247 at [25]-[31].

9. However, the Court notes that there is a critical difference in the processes between Part 7 and Part 5 reviews. In a Part 5 process, if an applicant fails to comply with a request for information under s 359 of the Act (which is equivalent to s 424 of the Act in Part 7), by operation of s 363A of the Act, the Tribunal will have no discretion (nor any power) to conduct a hearing. There is no such consequence in relation to a review under Part 7 of the Act.

10. The Tribunal thus retains a discretion under Part 7 of the Act to schedule a hearing if it considers it necessary (though the applicant will no longer be “entitled” to attend such a hearing).

11. The Court also notes the comments of Driver FM (as he was then) in SZQLJ v Minister for Immigration & Citizenship [2011] FMCA 932 as follows (emphasis added):

    35.…the Tribunal [acting under Part 7], unlike the Tribunal [acting under Part 5], is not required to deny an applicant a hearing opportunity to which he or she has been invited because of a non‑provision of requested information…

12. In this matter, the Tribunal retained its discretionary power to invite the applicants to attend a hearing and did so and the Tribunal was not required to deny the applicants the opportunity to do so.

13. No arguable case of error arises in this regard.

    Conclusion regarding merits of the substantive application

14. Assessed at a reasonably impressionistic level, the applicants’ “grounds of review” and oral evidence do not identify any arguable case of jurisdictional error on the part of the Tribunal.  Further, the Court has itself been unable to identify any arguable grounds of error of the sort that this Court can address.

15. This weighs heavily against granting an extension of time.

    Conclusion

16. While the insignificant delays and lack of prejudice weigh in favour of granting the applicants’ request for an extension of time, the lack of an arguable case of error in the Tribunal’s decisions (judged at an impressionistic level in relation to this matter) significantly outweighs those considerations.

17. The Court does not consider that it is in the interests of the administration of justice for an extension of time to be granted in this matter.

18. The application for an extension of time (as amended on 24 February 2023) is, accordingly, dismissed.

I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       9 March 2023