BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 902
•13 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 902
File number: MLG 1065 of 2021 Judgment of: JUDGE CHAMPION Date of judgment: 13 October 2023 Catchwords: MIGRATION LAW – Application for review of Registrar’s decision for which an extension of time is required in circumstances in which the Registrar refused to set aside an earlier order summarily dismissing the Applicant’s judicial review application on her non-appearance – Whether an extension of time should be granted for review of Registrar’s decision to refuse to set aside order – no extension of time granted because the substantive judicial review application had no reasonable prospects of success- not in the interests of justice to set aside the summary dismissal order because the substantive judicial review application had no reasonable prospects of success Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss. 7, 256
Migration Act 1958 (Cth) ss. 425, 425A, 426A 441A 441C, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) 13.06, 13.13, 17.05, 21.02
Cases cited: Associated Provincial Picture Houses Ltd v Wednesbury Corp. [1948] 1 KB 223
Minister for Immigration and Citizenship v. Li [2013] HCA 18; 249 CLR 332
Minister for Immigration, Citizenship and Multicultural Affairs v SZVFW (2018) 264 CLR 541
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271; [2010] FCA 621
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28
WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of last submissions: 14 September 2023 Date of hearing: 14 September 2023 Place: Melbourne Counsel for the Applicant: In-person Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1065 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIM21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
13 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application for an extension of time to review the decision made by a Registrar on 27 July 2023 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $1,100.
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 CHAMPION
INTRODUCTION AND SUMMARY
On 21 May 2021 the Applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal made on 11 May 2021. By an amended response filed on 15 May 2023, the First Respondent asked the Court pursuant to r. 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) to summarily dismiss the application on the basis that the Applicant had no reasonable prospect of successfully prosecuting the proceeding. On 13 June 2023 a Registrar dismissed the Applicant’s judicial review application on her non-appearance on the hearing of the First Respondent’s summary dismissal application. On 3 July 2023, the Applicant filed an application in a proceeding seeking to set aside the orders made on 13 June 2023 and to reinstate her substantive judicial review application. On 27 July 2023, a Registrar dismissed the Applicant’s application for the reinstatement of her substantive judicial review application.
The Applicant now seeks de novo review of the Registrar’s decision made on 27 July 2023 pursuant to s. 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) and the Rules. Rule 21.02(1) of the Rules provides that “an application for review of the exercise of a power by a Registrar must be made within 7 days.” Rule 21.02(2)(a) provides that the “time prescribed […] may be extended by the Court […] on any terms that the Court […] thinks fit.”
The Applicant filed an application for review of the Registrar’s decision on 3 September 2023 (Review Application) some 32 days after the 7-day time limit the Rules prescribe.
As the grounds in the substantive judicial review application have no reasonable prospects of success, it is not in the interests of justice to extend time for the bringing of the review application under r. 21.02(2)(a) and will make orders accordingly. I have set out my reasons below.
BACKGROUND AND PROCEDURAL HISTORY
The Applicant is a citizen of China.
On 5 August 2017 the Applicant first arrived in Australia (CB10-12).
On 7 September 2017 the Applicant applied for a protection visa (Visa Application). The Applicant claimed that she faces a real risk of harm if she were to return to China because she is a “devout underground Christian” (CB18).
In her Visa Application, the Applicant listed an email address (which for privacy reasons I will refer to as the Gmail Address) (CB8). In answer to a question “Did the applicants receive assistance in completing this form?” the Applicant answered “No” (CB23).
By an email sent to the Gmail Address, a departmental officer requested the Applicant attend an interview before the delegate of the First Respondent (Delegate) on 5 December 2017 (CB37). The Applicant failed to attend the scheduled interview before the Delegate (CB44).
On 6 December 2017 the Delegate refused to grant the Applicant’s Visa (CB43-46).
Tribunal Application
On 29 December 2017 the Applicant applied to the Tribunal to review the Delegate’s decision (Tribunal Application) (CB53-55).
In the Tribunal Application, the Applicant listed the Gmail Address both in the “Details of person applying for review” and the “Correspondence details” sections of the application (CB51-52). The Applicant did not communicate to the Tribunal that she had a representative.
On 15 March 2021, the Tribunal sent a notice (by email) to the Applicant at the Gmail Address in which it invited the Applicant to attend a hearing on 20 April 2021 (CB57-59). The invitation to attend the hearing attached a “Fact Sheet” which explained that if the Applicant did not attend the scheduled hearing, the Tribunal “may dismiss your application for review without any further consideration of the application or the information before [it]” (CB63).
On 20 April 2021 the Applicant did not attend the scheduled hearing before the Tribunal (CB65-67).
On 20 April 2021 the Tribunal notified the Applicant via email (to the Gmail Address) of its decision to dismiss the Tribunal Application pursuant to s. 426A(1A)(b) of the Act (Dismissal Decision) (CB69-73). The Tribunal informed the Applicant that she could apply, in writing, for reinstatement of the application by 4 May 2021 (CB69).
The Applicant did not apply to reinstate her Tribunal application.
On 11 May 2021 the Tribunal confirmed its decision to dismiss the application: (CB76-77).
On 12 May 2021 the Tribunal notified the Applicant via email (to the Gmail Address) that it had confirmed its dismissal decision (Confirmation Decision) (CB75). It attached a copy of the Confirmation Decision.
Application in this Court
The Applicant’s judicial review application dated 21 May 2021 has the following grounds:
1.I was not properly invited to hearing submitted the supporting documents in accordance with law, therefore my case didn’t apply to s426A(1A)(b)
2.The AAT was unfairfully treated my claims and evidence of the Migratant Act 1958 with Wendesbury unreasonableness
[As written]
As set out above, on 15 February 2023 the First Respondent filed an amended response seeking summary dismissal of the judicial review application because it had no reasonable prospects of success.
On 13 June 2023, when the Applicant failed to attend the summary dismissal hearing, the Registrar dismissed the judicial review application because of her non-appearance pursuant to r. 13.06(1)(c) of the Rules.
On 3 July 2023 the Applicant filed her reinstatement application (an application to set aside the orders made on 13 June 2023) and an accompanying affidavit. Neither the reinstatement application nor accompanying affidavit gave any explanation as to why the Applicant failed to attend the 13 June 2023 hearing.
On 27 July 2023 the Registrar dismissed the reinstatement application and published written reasons.
By her application made on 4 September 2023 the Applicant brings an application for de novo review of the decision of a Registrar made on 27 July 2023 refusing to reinstate her substantive judicial review application. The Applicant requires an extension of time of the usual seven-day period in which to bring an application for review of a Registrar’s decision.
CONSIDERATION
A party to proceedings in which a delegate (relevantly defined under s7(1) to include a Registrar) has exercised any of the powers of the Court may apply to the Court for review of that exercise of power within the time prescribed by the Rules, or within any further time allowed in accordance with the Rules, pursuant to s. 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act).
As set out above, for the purposes of s. 256(1) of the FCFCOA Act, r. 21.02 of the Rules provides that an application for review of a Registrar’s decision must be made within 7 days or within such further time as the Court allows. The Applicant filed the review application on 4 September 2023, some 32 days out of time.
My discretion as to any extension of time must be exercised in the interests of justice. It will not be in the interests of justice to extend time for the bringing of a review application “if the substantive application does not have sufficient prospect of success to make it just that the prospective appellant be permitted to proceed with it” e.g., WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399, [9]. Without fettering the discretion, the First Respondent submits (and I accept) that the common considerations which inform the discretion to extend time under s. 477 of the Migration Act 1958 (Cth) to bring an application for judicial review may be relevant to the exercise of the discretion. Those considerations include the length of the delay, the explanation of the delay, any relevant prejudice to the First Respondent and the merits of the proposed substantive application: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28, [12].
Setting aside an order
On 13 June 2023 the Registrar had dismissed the application for judicial review when the applicant did not appear for the hearing of the first respondent’s application to summarily dismiss her application. The Registrar acted pursuant to the power in r. 13.06(1)(c) of the Court’s rules. The Court has a discretion to set aside an earlier order made in the absence of a party under r. 17.05(2)(a). The power to set aside the order is a discretionary power to be exercised in the interests of justice. The Applicant seeks review of the Registrar’s order on 27 July 2023 in which the Registrar refused to set aside the earlier order he had made on 13 June 2023 dismissing the substantive judicial review application because of the Applicant’s non-appearance. I am to conduct the review de novo on the basis that I am in the position the Registrar was in before he made the order on 27 July 2023. In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 Ryan J held at [7] that a relevant matter to be considered in deciding whether to set aside an earlier order was whether the substantive proceeding had a reasonable prospect of success.
That is, in exercising my discretion to extend time for the applicant to seek review of the Registrar’s decision a matter of decisive importance is whether the substantive judicial review proceeding has reasonable prospects of success. In addition, in exercising my discretion as to whether the order made on 13 June 2023 ought to be set aside a matter of decisive importance is whether the substantive judicial review proceeding has reasonable prospects of success.
Length, explanation, and prejudice of the delay
The Applicant filed the review application 32 days out of time. The Applicant’s review application and accompanying affidavit filed on 4 September 2023 did not provide any explanation as to why the review application was filed out of time.
The First Respondent did not claim any specific prejudice if the extension of time were granted.
Prospects of success
It is not in the interests of justice to extend the time for the bringing of the review application because neither of the 2 grounds in the Applicant’s substantive judicial review application have any reasonable prospects of success.
Ground 1
In her first ground for review, the Applicant submits that she was not “properly invited to [the Tribunal] hearing.” Any argument that the Tribunal breached its statutory obligations in the way in which it invited the Applicant to attend the scheduled hearing does not have reasonable prospects of success.
The Applicant was notified of the Tribunal hearing via the email address she provided to the Tribunal (the Gmail Address) which was the only email address she provided to the Tribunal. The Applicant was notified on 15 March 2021 via email as to the hearing on 20 April 2021. If the Tribunal gives an individual a document by way of notification by email to “the last […] email address […] provided to the Tribunal by the recipient in connection with the review” the individual is “taken to have received the document at the end of the day on which the document is transmitted”: ss. 441A(5)(b) and 441C(5) of the Act. By sending the email dated 15 March 2021 to the Gmail Address the Tribunal complied with its statutory obligations as to the notification to the Applicant of the invitation to the hearing pursuant to s. 425A of the Act.
The notification email sent to the Applicant on 15 March 2021 also contained a statement of the effect of s. 426A of the Act [as required by s. 425A(4)]:
If you do not participate in 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.
Having invited the Applicant under s. 425 to appear before the Tribunal, when the Applicant did not appear the Tribunal acted in accordance with s. 426A(1A)(b) in dismissing the application without any further consideration of the application or information before the Tribunal (Dismissal Decision) (CB71).
The Tribunal duly notified the Applicant of its Dismissal Decision on 20 April 2021 via email to the Gmail Address provided. By its email dated 20 April 2021 the Tribunal complied with its statutory obligations to give the Applicant 14 days to apply to the Tribunal in writing for reinstatement of her application. Once the Applicant failed to apply for reinstatement within the 14-day period, the Tribunal had to confirm its decision to dismiss the application under s. 426A(1E).
For these reasons, an argument that the Tribunal did not comply with its statutory obligations to invite the Applicant to the hearing does not have reasonable prospects of success.
In this Court, before me, the Applicant claimed that she had not received the emails sent to her Gmail Address either inviting her to appear at the scheduled hearing before the Tribunal on 20 April 2021 or the subsequent email dated 20 April 2021 which notified her of the Dismissal Decision.
By sending a document by email to the Applicant, that is by giving a document to her by one of the prescribed methods in s. 441A, a person is “taken to have received the document” at the time specified in s. 441C, “regardless of whether [the document] was actually received’: SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271; [2010] FCA 621, [36].
Ground 1 has no reasonable prospect of success.
Ground 2
In Ground 2 the Applicant submits that her claims and evidence were treated unfairly and with “Wednesbury unreasonableness”, an apparent reference to Associated Provincial Picture Houses Ltd v Wednesbury Corp. [1948] 1 KB 223.
The Tribunal had a discretion under s. 426A(1A)(b) as to whether to dismiss the application. Like any other statutory discretion, it is to be understood as conditioned by a requirement that it be exercised in a legally reasonable way: Minister for Immigration and Citizenship v. Li [2013] HCA 18; 249 CLR 332; [23]-[26] (French CJ); [63] (Hayne, Kiefel and Bell JJ); [88]-[92] (Gageler J).
The Tribunal’s decision to proceed to make a decision without taking any further action to allow or enable the Applicant to appear before it was not legally unreasonable.
In Minister for Immigration, Citizenship and Multicultural Affairs v SZVFW(2018) 264 CLR 541; [2018] HCA 30 Kiefel CJ at [69] held as follows:
68. The Tribunal is exhorted to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”, to “act according to substantial justice and the merits of the case”, and in applying Div 4 of Pt 7, within which ss 425 and 426A are located, to “act in a way that is fair and just”. Because Div 4 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”, the Tribunal acting fairly and justly is entitled to regard an applicant to whom it is satisfied that an invitation complying with s 425 has been sent as having had adequate notice of his or her opportunity to appear before the Tribunal when considering exercising the discretion under s 426A(1) in the event of non-appearance.
In this case, the preconditions to the exercise of the power under s. 426A(1)(b) were met. The decision that the Tribunal made to proceed in accordance with s. 426(A(1)(b) was explicable (and within its area of decisional freedom) having regard to the fact that it had sent an email about the scheduled hearing to the Applicant’s last email address. Further, the Applicant had previously failed to attend an interview with the Delegate. There was some history of non-engagement. Section 426A(1) did not require the Tribunal to make any further attempt to contact the Applicant: SZVFW [69] (Kiefel CJ); [121] (Nettle and Gordon JJ).
Ground 2 has no reasonable prospects of success.
CONCLUSION
I will not extend time for the bringing of the review application because the substantive judicial review application has no reasonable prospects of success.
I note that even if I had decided to extend the time to bring the application for review of the Registrar’s decision, because the substantive judicial review application has no reasonable prospects of success in any event it is not in the interests of justice to set aside the Registrar’s orders made on 13 June 2023.
I will order that the Applicant pay the Minister’s costs as sought in the fixed amount of $1,100.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 28 September 2023
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