BID18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 94
Federal Circuit and Family Court of Australia
(DIVISION 2)
BID18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 94
File number(s): MLG 683 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 16 February 2023 Catchwords: MIGRATION LAW – application for extension of time – decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where application for judicial review was filed some 216 days out of time – consideration of whether it is in the interests of the administration of justice to extend time – finding that delay was lengthy, there was no reasonable explanation for the delay and substantive application is bound to fail – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 426, 477 Cases cited: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submission/s: 23 January 2023 Date of hearing: 23 January 2023 Place: Melbourne Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
MLG 683 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BID18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
16 February 2023
THE COURT ORDERS THAT:
1.The applicant’s application filed on 19 March 2018 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed, if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) on 11 July 2017 affirming a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’), not to grant the applicant a protection (Class XA) visa (‘protection visa’).
The applicant’s application was filed approximately 216 days out of time. Therefore, as a preliminary matter, the applicant seeks an extension of time pursuant to section 477(2) of the Migration Act 1958 (Cth) (‘the Act’) within which to file the application.
Background
The applicant is a citizen of Malaysia. She arrived in Australia on an Electronic Travel Visa on 5 September 2016.[1]
[1] Court book at page 23.
Application for protection visa on 14 October 2016
On 14 October 2016, the applicant applied for a protection visa.
In her application, in relation to the reasons why she feared harm if she were to return to Malaysia, the applicant claimed:
(a)she was ‘seeking protection in Australia so that (she did) not have to return to Malaysia’;
(b)she left Malaysia due to economic problems in the county, and said it was ‘difficult to bear the expense of my life. I started to get stuck with a gold investment, and ultimately I have to bear a lot of debt. I always followed by a lender to resolve it’; and
(c)her life ‘would be threatened’, that she was at risk and was ‘very stress[ed] to settle down everything’.[2]
[2] Court book at page 32.
In her protection visa application, in response to the question as to why she did not move to another part of Malaysia, the applicant said ‘I feel more safety and quite comfortable with environment here’.[3]
[3] Court book at page 33.
On 6 March 2017, the delegate refused the applicant’s application for a protection visa.[4]
[4] Court book at pages 53 to 55.
Application for review at Tribunal on 11 March 2017
On 11 March 2017, the applicant filed an application for review of the delegate’s decision with the Tribunal.[5]
[5] Court book at pages 69 to 70.
On 19 April 2017, the applicant contacted the Tribunal by email with an enquiry about how to update her mailing address.[6] A response was provided later that day.[7]
[6] Court book at page 74.
[7] Court book at page 75.
On 6 June 2017, the applicant by email sought an update on her review application.[8] Subsequently, on 16 June 2017, the applicant was invited by letter to attend a hearing before the Tribunal, scheduled for 11 July 2017.[9]
[8] Court book at page 76.
[9] Court book at pages 78 to 80.
Relevantly, in the June 2017 hearing invitation letter, the Tribunal advised the applicant:
If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.[10]
[10] See Court book at pages 79 to 80.
On 4 July 2017, and again on 10 July 2017, SMS reminders were sent to the applicant’s mobile phone reminding the applicant about the Tribunal hearing scheduled for 11 July 2017.[11] Notwithstanding the correspondence sent to the applicant on 16 June 2017 and the reminders sent by SMS, the applicant ultimately did not attend the hearing on 11 July 2017.[12]
[11] Court book at page 81.
[12] Court book at page 82.
Later on 11 July 2017, the Tribunal affirmed the decision of the Minister’s delegate to refuse the applicant a protection visa.[13] The Tribunal did so exercising its discretion under section 426A(1A) of the Act. That section relevantly provides:
[13] Court book at page 86.
(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.
(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.
(1B)If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.
(1C)On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a)if it considers it appropriate to do so – reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or
(b)confirm the decision to dismiss the application, by written statement under section 430.
…
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
Ultimately, no application was made by the applicant to the Tribunal to reinstate the matter.
Tribunal decision
The Tribunal’s decision of 11 July 2017 is set out at pages 91 to 99 of the court book.
At paragraphs [6] to [10], the Tribunal sets out the legislative criteria for a protection visa. At paragraph [15], the Tribunal goes on to summarise the applicant’s claims, and then at paragraph [16], the available evidence before the Tribunal. With the exception of the applicant’s application for review at the Tribunal, this consisted of the evidence before the delegate.
At paragraphs [23] to [30], the Tribunal set out its consideration of the applicant’s claims. Relevantly, at paragraph [26], the Tribunal noted that the applicant’s claims were ‘brief and very general’. In addition, at paragraph [27], the Tribunal said:
27.As the applicant did not avail herself of the opportunity to attend the hearing to provide further information, and in the circumstances set out above at [19], the Tribunal has decided the review on the information before it. Had the applicant attended the hearing, it would have asked her further detail about her claims and it would have been an opportunity for the applicant to address the various gaps in her claims and provide further information and details.
At paragraph [28], the Tribunal then set out the various claims in respect of which there was insufficient evidence, namely:
(a)the circumstances of the applicant’s investment in gold and her resulting debt;
(b)the applicant’s claim that she was ‘always being followed by a lender’; and
(c)who the applicant fears and what she thinks will happen to her upon return to Malaysia.
After considering relevant country information at paragraph [29], the Tribunal concluded at paragraph [30] that it was ‘unable to be satisfied that the applicant has ever been harmed by a ‘lender’ or anyone else’.
The Tribunal therefore was not satisfied that the applicant was owed protection under either section 36(2)(a) or 36(2)(aa) of the Act. The Tribunal therefore affirmed the delegate’s decision not to grant the applicant a protection visa.
Proceedings in this court
As stated, the applicant filed her application for judicial review of the Tribunal’s decision on 19 March 2018, some 216 days out of time.
Notwithstanding orders made by Registrar Gitsham on 6 March 2019 permitting her to do so, the applicant did not file an amended initiating application or written submissions in support of her application.
In her substantive application, the applicant raises the following grounds of review:
1.I am not satisfy (sic) with the interpreter while in the hearing case process, as they did not giving a better explanations to me.
2.Even though, I am not good enough in English, but still a few words of its (sic) I did understand.
Hearing on 23 January 2023
At the hearing before me on 23 January 2023, the applicant represented herself and was assisted by an interpreter in the Malay language.
When asked whether she wished to make any further submission in relation to the application for an extension of time, the applicant stated that she wanted the opportunity to make a further application to the Tribunal. The applicant did not provide any further information as to the reason for the delay in making her application for judicial review, other than to say that she moved numerous times.
The applicant also did not make any further submissions as to the merits of the application. When asked which interpreter she was taking issue with, the applicant confirmed that she had not attended the hearing before the Tribunal and said that she raised the ‘interpreter’ issue in her application as she had no other issues to raise to support her application.
Extension of time application
In this case, the applicant’s application is some 216 days, or 7 months, out of time. It is well settled that in determining whether to grant an extension of time, the court must have regard to the interests of the administration of justice. Relevant to that consideration are the following factors:
(a)the length of the delay and the explanation for that delay;
(b)any prejudice to the Minister in granting the extension of time; and
(c)whether there is any merit to the grounds raised by the applicant’s substantive application.[14]
[14] SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46]-[48].
While this is not an exhaustive list, these are the relevant factors in this case.
The Minister concedes that there is no claimed prejudice to the Minister in granting the extension of time. However, the Minister submits that the delay in this case is significant and the explanation for that delay is entirely unsatisfactory.
Merits of grounds in substantive application
Moreover, the Minister submits that the determinative factor in this case is that the substantive application is bound to fail.
There is much force to this submission, particularly in light of the concession made by the applicant that she did not have any cause to engage with an interpreter during the hearing process in circumstances where she did not attend the hearing before the Tribunal.
As outlined above, the only ground of review raised by the applicant is a claimed interpreter error. As stated above, however, the applicant did not attend the scheduled hearing before the Tribunal and therefore no interpreter was used. Nor did she attend a hearing before the delegate. Therefore, in circumstances where the services of an interpreter were not used, there is no scope for any interpreter error to be found.
In any event, even if the applicant had engaged with an interpreter in the proceedings before the Tribunal, there is no evidence before the court of any interpreter error.
For each of these reasons, the applicant’s sole ground of review is bound to fail.
The administration of justice would not be served by allowing an extension of time in an application which had no prospects of success.
Length and explanation for the delay
It is also relevant in my view that the delay in this case is significant and no reasonable explanation for that delay has been provided by the applicant.
The applicant indicated in her affidavit in support of her application that the reason for the delay was that she had been unable to afford legal representation, and it was only recently that she was able to obtain assistance in completing the application.[15] However, the applicant ultimately made this application, and indeed appeared before the court, without legal representation. It is not clear from the applicant’s affidavit or indeed, from her oral submissions, why the assistance she finally obtained was unavailable to her for about 7 months.
[15] Applicant’s affidavit filed on 19 March 2018.
The applicant further said in her oral submission that she moved frequently. Again, this does not explain the lengthy delay in filing the application for judicial review.
For each of these reasons I am not satisfied that it is in the interests of the administration of justice for an extension of time to be granted in this matter.
Other relevant matters
Finally as a model litigant, the first respondent has also raised two additional matters relevant to the court’s decision as to whether there is any error evident on the face of the Tribunal’s decision, notwithstanding the manner in which the applicant has framed her grounds of review.
Tribunal’s consideration of substantive application for review
First, it is submitted for the Minister, and I accept, that the Tribunal’s substantive consideration of the applicant’s claims was reasonably open on the evidence before it. As noted, the Tribunal summarises the applicant’s claims, which were brief and very general. The applicant’s failure to provide any written submissions or attend the hearing meant that the only evidence before the Tribunal was that contained in the applicant’s application.
In those circumstances, it was open to the Tribunal to make the findings that it did. As stated by counsel for the Minister, ‘the Tribunal’s non-satisfaction with the applicant’s claims is the natural consequence of the applicant not seeking to substantiate her claim at any point’.[16]
[16] Minister’s Outline of Submissions filed on 18 October 2022 at paragraph [30].
No jurisdictional error is disclosed by that process of reasoning.
Tribunal’s exercise of power under section 426A of the Act
In addition, no jurisdictional error is disclosed by the Tribunal’s decision to exercise its discretion to determine the matter in the absence of the applicant. The High Court considered the Tribunal’s power under section 426A of the Act in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (‘SZVFW’). The power in section 426A is a discretionary one, and one which therefore must be exercised within the bounds of legal reasonableness.
As set out above, section 426A was engaged in the circumstances of this case. Other than sending follow up emails about her application on two occasions, the applicant did not engage in the visa application process. Importantly, the applicant did not participate in the proceedings before the Tribunal, notwithstanding having effectively been put on notice of concerns about the lack of detail in her claim in the delegate’s reasons where the delegate said:
I note that the applicant has outlined their situation in minimal detail and with no supporting evidence. Without further context, I find on the information before me, that the applicant would receive effective protection from the RMP and judiciary in Malaysia against any threats they face from illegal money lenders.[17]
[17] Court book at page 62.
In addition, the applicant had been on notice of the hearing and was reminded of the hearing twice by SMS message. The applicant did not actively participate in the review process. She did not provide any written submissions, she did not complete the hearing information form and she did not attend the scheduled hearing, nor did she request an adjournment.
In those circumstances, it was entirely reasonable for the Tribunal to proceed to exercise its discretion and determine the application on the information before it. There was nothing before the Tribunal to suggest that it ought act cautiously before dealing with the application in the applicant’s absence. Rather, the applicant’s non-appearance at the hearing before it was consistent with her non-engagement with the Tribunal to that point.[18]
[18] See SZVFW at paragraph [9] (Kiefel CJ).
For example, in SZVFW, Kiefel CJ at paragraph [13] said:
13.The Migration Act requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. In reviewing a decision the Tribunal is required to act according to substantial justice and the merits of the case. Clearly enough s 426A is directed to the aims of efficiency contained within these objectives, although it is not to be exercised in a way which would be contrary to the others. Consistently with what has earlier been discussed, it is to be understood that the Tribunal has a degree of latitude in determining what is fair and just in a given case.
Moreover, Gageler J in SZVFW noted at paragraphs [69] and [70]:
69.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.
70.Nothing before the Tribunal took the respondents' application for review into the realm of the extraordinary. To the contrary, the respondents' failure to respond to the earlier invitation from the Minister's Department and their failure to provide the Tribunal with any further documentation in support of their claims for protection, both of which considerations were expressly taken into account by the Tribunal, suggested that a further attempt by the Tribunal to make contact with them would be unlikely to elicit a response.
These comments are consistent with the circumstances of the present case. No jurisdictional error is therefore apparent from the manner in which the Tribunal chose to exercise its discretion under section 426A of the Act.
Conclusion
For each of these reasons, I therefore dismiss the applicant’s application with an order that she pay the first respondent’s costs in a sum to be fixed if not agreed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mercuri. Associate:
Dated: 16 February 2023
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