BLF22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 842
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BLF22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 842
File number(s): MLG 883 of 2022 Judgment of: JUDGE GOODCHILD Date of judgment: 21 September 2023 Catchwords: MIGRATION - protection visa - decision of the Administrative Appeals Tribunal - application for extension of time - significant delay - unsatisfactory explanation for delay - no prejudice - no arguable case of jurisdictional error - application dismissed with costs Legislation: Migration Act 1958 (Cth) 425, 425A, 426A, 426B, 441A, 441C, 477
Migration Regulations 1994 (Cth)
Cases cited: BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
EBS17 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187
Englezos v Secretary, Department of Social Services [2023] FCA 31
Gallo v Dawson (1990) 93 ALR 479
Jess v Scott (1986) 12 FCR 187
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
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) 242 FCR 585
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SNYE v Minister for Immigration and Citizenship [2010] FCA 500
Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901
SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Tran v Minister for Immigration & Border Protection [2014] FCA 533Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 25 July 2023 Applicant: In Person Solicitor for the Respondent: Ms G Wilson of Minter Ellison ORDERS
MLG 883 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BLF22
First Applicant
BLG22
Second Applicant
BLH22
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
21 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.
2.The applicant pay the first respondent’s costs in the amount of $3,930.00.
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 GOODCHILD:
INTRODUCTION & BACKGROUND
The applicant BLF22 is the partner of the second applicant, BLG22, and the father of the third applicant, BLH22. As BLH22 is a minor, BLF22 was appointed that applicant’s litigation guardian.
The applicants are citizens of Thailand.
On 29 January 2019, BLF22 lodged an application for a protection visa (subclass 866) as the primary applicant and included in that application both BLG22 and BLH22 as members of his family unit.
On 26 June 2019, a delegate of the then Minister for Immigration refused to grant the applicants protection visas, having not been satisfied that they were persons in respect of whom Australia had protection obligations.
On 1 July 2019 the applicant lodged an application with the Administrative Appeals Tribunal for review of the delegate’s decision. In that review application, the applicant provided an email address for service of documents.
On 27 September 2021, the Tribunal sent an email to the applicant’s nominated email address requesting that the applicant provide a telephone number to the Tribunal within seven days. The applicant did not respond to this email.
On 7 October 2021, the Tribunal sent an email to the applicant’s nominated email address attaching correspondence inviting the applicant to attend a hearing on 25 October 2021 at 4.00pm. The hearing was to proceed via telephone due to the COVID-19 pandemic. In its correspondence to the applicant, the Tribunal advised the applicant that at the hearing he would be provided with the opportunity to give and present arguments relating to the issues in his case. The applicant was also informed that if he did not attend the scheduled hearing the Tribunal may dismiss the application for review without any further consideration of the application. The Tribunal requested that a response to the hearing invitation be provided within seven days, but no such response was received from the applicant.
At the Tribunal hearing on 25 October 2021, there was no appearance by or on behalf of the applicant.
As a result of the applicant’s failure to attend the Tribunal hearing on 25 October 2021, the Tribunal made a decision (“the Non-Appearance Decision”) to dismiss the applicant’s review application pursuant to s 426(1A)(b) of the Migration Act 1958 (Cth) (“the Act”).
On 26 October 2021, the Tribunal emailed the applicant a copy of the Non-Appearance Decision. By that correspondence, the applicant was also informed he could make an application to reinstate his review application by 9 November 2021.
The applicant did not apply for reinstatement. As such, on 10 November 2021 the Tribunal made a decision to confirm the Non-Appearance Decision (“the Confirmation Decision”) which, by virtue of s 426A(1F) of the Act, meant the delegate’s decision was taken to be affirmed.
By an Originating Application filed in this Court on 3 March 2022, the applicant seeks an extension of time to apply for judicial review of the Confirmation Decision. The applicant does not refer in his application to the Non-Appearance Decision and this decision was not attached to the applicant’s Affidavit filed in support of his application. However, I treat the present review application with respect to both the Non-Appearance Decision of 26 October 2021 and the Confirmation Decision dated 10 November 2021.
Pursuant to s 477(1) of the Act, the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. The applicant is 93 days out-of-time in relation to the Non-Appearance Decision (dated 26 October 2021), and 78 days out-of-time with respect to the Confirmation Decision (dated 10 November 2021).
Accordingly, the applicant requires an extension of time pursuant to s 477(2) of the Act to pursue his judicial review proceedings in this Court.
The applicant’s extension of time application proceeded to an electronic hearing before me on 25 July 2023. At the hearing, the applicant appeared unrepresented. An interpreter in the Thai language was present to interpret the proceedings for the applicant.
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.
LEGAL PRINCIPLES - EXTENSION OF TIME
Section 477(2) of the Act provides that the Court may, by order, extend the 35 day period within which a substantive judicial review application can be filed, if;
(a)the applicant makes an application for extension of time in writing detailing why the extension should be granted; and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice to grant the extension.
In the present case, the applicant filed his Originating Application on 3 March 2022 seeking an extension of time and provided therein the following “grounds” for why he believes an extension should be granted:
Because on that time I was have a problem with received letter refuse till I have check my visa expired, so I trying to contact the people is have received this letter and forward this refuse to me and I have appeal but Is to late. I have appeal not on time.so that make me worried and anxious. I very worry about court fees and so scared that could be Arrested for not having a visa. I hope and would like to request to FCC to set aside old order and replace by new order and accept my application for review as a valid application and decide on this matter at FCC.
(As per original)
Section 477(2)(a) of the Act is thus satisfied.
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.
While the factors which may be considered when determining whether to grant an extension of time are not limited, as per the reasoning of the High Court Tu’uta Katoa[1] in relation to a substantively similar provision in s 477A(2) of the Act, the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether there has been a reasonable and adequate explanation for the delay (explanation);
(c)whether there is any prejudice to the Minister (prejudice); and
(d)whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time (merits of substantive application).
[1] Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 (“Katoa”) at [12]-[13].
When considering the merits of the proposed substantive application as a factor in assessing whether to grant an extension of time, the Court will do so at a “reasonably impressionistic level”.[2] 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.[3]
[2] MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585 (“MZABP”).
[3] MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158 (“MZAIB”); Katoa at [54].
In Katoa, in relation to s 477A(2) of the Act, the High Court considered that the provision entrusts to the Court the function of identifying and formulating the interests of the administration of justice and how they should be weighted and assessed, including by reference to the merits of the proposed application. It will not constitute jurisdictional error to undertake more than an impressionistic assessment of the merits, leaving the discretion to exercise this power “deliberately broad”[4].
[4] Tu’uta Katoa at [39], [46]-[61].
To assist the applicant who, as noted, was unrepresented at the hearing on 25 July 2023, the Court explained to him that the possible categories of jurisdictional error for migration decisions of this sort, most commonly include, but are not limited to, the following categories:
(a)where the decision-maker ignores relevant material;[5]
(b)where the decision-maker relies on irrelevant material;[6]
(c)where the decision-maker fails to follow mandatory procedures;[7]
(d)where the decision-maker shows actual or apprehended bias;[8] and
(e)where the decision is illogical, irrational or unreasonable.[9]
[5] Craig v State of South Australia (1995) 184 CLR 163 at 198.
[6] Craig v State of South Australia (1995) 184 CLR 163 at 198.
[7] SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208].
[8] SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2].
[9] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 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].
It was also explained to the applicant that it is not the role of this Court to grant him the visa he seeks but rather to determine whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at.[10]
[10] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
SHOULD AN EXTENSION OF TIME BE GRANTED?
The Court confirmed with the applicant that he had the Court Book and the written Outline of Submissions of the first respondent which had been served on him on 22 June 2022 and 4 July 2023, respectively. The matter was stood down for a period of time to allow the Thai interpreter to translate for the applicant the written submissions of the first respondent. When the matter resumed, the applicant was asked if there was anything further he wished to say in respect of his application for an extension of time. The applicant’s responses, where relevant, will be included in my consideration of the factors below. The Court was satisfied that the applicant fully understood the proceedings and was able to properly participate in and follow the proceedings.
Length of delay
The Court notes that an extension of time is not granted as a right.[11] Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule.[12]
[11] Gallo v Dawson (1990) 93 ALR 479 at [2] per McHugh J.
[12] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
The delays in this matter are 93 days in relation to the Non-Appearance Decision and 78 days in relation to the Confirmation Decision.
The delay in this case is significant and weighs against the granting of an extension of time.
Prejudice
It was conceded by the first respondent’s solicitor in written submissions filed in this Court on 4 July 2023 that the first respondent would not face any particular prejudice if the extension was granted.
This weighs in favour of granting the extension of time.
Explanation for delay
The longer the delay in question, the more satisfactory the explanation for that delay needs to be.[13]
[13] Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
The Affidavit filed by the applicant in support of his judicial review application does not provide any explanation for the delay in commencing the proceedings in this Court. In that Affidavit, the applicant refers only to the Confirmation Decision made by the Tribunal. It is in the Originating Application, and the applicant’s oral submissions, where he provides some detail as an explanation for delay.
The applicant submitted that the email address he nominated on his judicial review application belonged to an acquaintance and that that acquaintance had received correspondence on his behalf. It appeared to be suggested by the applicant that he had not been notified by the acquaintance about matters relating to his case until much later and that he had otherwise not known much about the application process and what is required of him.
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 applicant in this matter did not do that. There is no evidence here, for example, that the applicant sought assistance from the Court or the Tribunal about what was required of him. As was recently discussed by Collier J in Englezos:[14]
As a general position, I note that an inability to obtain legal advice does not, in itself, form an adequate explanation for delay. Whilst the Court may have sympathy for a litigant in person, a failure to abide by any stipulated timeframe in the filing of an appeal by virtue of a professed ignorance of the relevant rules is not an adequate reason for delay: BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40]; SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38]; MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25]. Although a person wishing to bring an action or appeal is entitled to seek assistance from legal practitioners, it is ultimately the proposed applicant’s case and responsibility to ensure compliance with the relevant requirements; see for example SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33]…
Without good reason, a litigant in person is not inherently exempt from the rules. The time limits prescribed by the Federal Court Rules and AAT Act are not “mere aspirational guidelines” and the applicant must provide a good reason to explain the delay, particularly when that delay is lengthy: BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3]; BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40].
(Emphasis added)
[14] Englezos v Secretary, Department of Social Services [2023] FCA 31.
The Court does not consider that the applicant has provided a satisfactory explanation for the delay.
This weighs against granting an extension of time.
Merit
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”.
In this regard, the Court refers to the High Court’s decision in Katoa as follows:
17.… 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”.[15] 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,[16] 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.[17]
[15] CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at 452 [19].
[16] MZABP [2015] FCA 1391; (2015) 242 FCR 585 at 597 [58].
[17] Federal Court of Australia Act1976 (Cth), s 24(1)(a).
The application for judicial review filed by the applicant on 3 March 2022 includes the following grounds of review:
1.I am come from Thailand, and I was came to Australia. But I am hardly speak and understand word of English and has landed in real trouble. I came across a person who claimed to be a visa expert and advised that would help me to complete my visa application after my visa was expired.
2.This is an application for review of a decision of a delegate of the Minister for Immigration on 26 June 2019 to refuse to grant a protection visa The review application was lodged within the Tribunal On 26 October 2021 For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.so whatever.
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 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..However due to this barrier for people who and I wish to make refugee visa application so that people could remain in Australia to be safe from trouble back in their home country.
4.As the applicant 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 decision under review is taken to be affirmed. I am would like to explain that why I can not return to Thailand if I return my life is in danger. in Thailand. in my personal reason it is very danger became personally offended and proceeded to verbally abuse me, physically harass me and assault me. and they will kill me if I return to Thailand, I was so scared I left the country. Also on that hard time even now on my embarrassing including the pressure of not understanding the process and the expense is stressful I can not make any decision I decide to not response to the AAT and advised AAT it was beyond my control, my case and my application very sensitivity of my clime and potential problem I would face upon return to my home country.
5.AAT member has considered my request however, decided not to accept my application and dismissed my application. AAT allows people did comment and did not comment however but AAT never accept anyone’s claim. I strong believe that AAT member has not used his discretion in threat in my matter and I believe this is unfair treatment by AAT. I have been already suffering from consistent threat in my home country if I had to go back and my hope was on AAT to accept my matter so this application could be heard before the member
6.AAT has made an error in law while dismissing my matter and refused to accept this application would like to request to FCC to accept my matter and set up new orders and replace orders made by AAT as AAT has made a jurisdictional error when decided not accept this matter. I don’t see a reason why AAT has Natural Justice when they are not going to accept circumstances beyond my control..
7.New order will allow me to present this matter before the FCCC and I would have fair outcome on
8.I would like to request to FCC to set aside old orders and replace by new order and accept my application for review as a valid application and decide on this matter at FCC.
(As per original)
Orders were made for the applicant to file and serve any amended application and any Affidavit containing additional evidence to be relied upon. He did not do so. Orders were also made for the applicant to file and serve written submissions. No submissions were filed.
On a review of the applicant’s application and Affidavit, there is nothing contained in either document which gives rise to matters of jurisdictional error. Neither did the applicant’s oral submissions raise any allegation of jurisdictional error.
Despite this, it is important to ensure that the applicant’s judicial review application is substantially considered by this Court. Accordingly, in its duty to assist self-represented litigants, the Court will consider for itself whether any arguable case of error arises in the Tribunal’s decision.[18]
[18] MZAIB [59]-[77].
Having regard to the grounds of review contained in the applicant’s application and having regard to the nature of the decisions under review, I propose to consider the following issues:
(a)whether the applicant was properly invited to attend the Tribunal hearing;
(b)whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance; and
(c)whether the Tribunal erred by confirming the decision to dismiss the application.
For completeness, I first set out the Tribunal’s decisions.
The Tribunal’s decisions
The Non-Appearance Decision
The Non-Appearance Decision dated 26 October 2021 provides:
1.The review applicants did not provide a telephone number to the Tribunal in their review application or in subsequent correspondence. On 27 September 2021, the Tribunal wrote to the review applicants and requested that a telephone number be provided to enable the Tribunal to consider the case for a video or telephone hearing. The Tribunal did not receive a response.
2.The review applicants were invited under s 425 of the Migration Act 1958 (Cth) to appear before the Tribunal by telephone on 25 October 2021 at 4.00 pm (VIC time). To attend the hearing by telephone, the review applicants were invited to call, at the specified time, the telephone number and unique conference ID specified in the hearing invitation. The hearing was scheduled during the COVID-19 pandemic and the Tribunal determined it was reasonable in the circumstances to hold a hearing by telephone. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
3.The invitation stated that if the review applicants 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. The invitation also stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the review without further notice. The review applicants did not respond to the hearing invitation and have not engaged with the Tribunal about the review process since their application for review was lodged on 1 July 2019.
4.The review applicants did not appear before the Tribunal on the day and at the scheduled time and place. There is no evidence before the Tribunal that the review applicants called the telephone number in the hearing invitation and used the unique conference ID at the scheduled time, as instructed to do in the hearing invitation. There is also no record of the review applicants contacting the Tribunal by any other means at the scheduled time to explain why they had not used the telephone number and unique conference ID to attend the hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were properly invited to a hearing in accordance with s 441A(5) and that the invitation has not been returned to sender. No satisfactory reason for the non-appearance has been given.
5.In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
(As per original)
The Confirmation Decision
The Confirmation Decision dated 10 November 2021 provides:
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 June 2019 to refuse to grant the visa applicants protection visas under the Migration Act 1958 (the Act).
2.On 26 October 2021, 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 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
5.The Tribunal confirms the decision to dismiss the application.
(As per original)
The obligation to properly invite the applicant to a Tribunal hearing – s 425
As noted above, the applicant did not attend the Tribunal hearing scheduled on 25 October 2021 which resulted in the Tribunal dismissing the applicant’s application for review pursuant to s 426A(1A)(b) of the Act.
The Tribunal was required to invite the applicant to attend a hearing before it pursuant to s 425 of the Act. That section 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.
In the present case, the invitation to attend the hearing:
(a)was addressed to the applicant;
(b)clearly indicated the date, time and means by which the applicant could participate in the Tribunal hearing;
(c)was sent to the applicant’s email address provided by him in his review application; noting that that the email notification is a method approved by s 441A(5)(b) of the Act;
(d)was provided to the applicant more than 14 days’ prior to the scheduled hearing, being a time-frame exceeding the minimum notice period prescribed by reg 4.35 of the Migration Regulations 1994 (Cth); and
(e)contained information describing the effect of s 426A of the Act and the particular consequences of a failure to attend the hearing.
It should be further noted 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 applicant is “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 7 October 2021), regardless of whether the document was actually received.[19]
[19] SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271 at [36].
The Court is satisfied that the Tribunal complied with the requirements set out in ss 425 and 425A of the Act. The applicant in this matter was properly invited to attend the hearing.
No jurisdictional error arises in relation to the Tribunal’s procedural fairness obligations concerning the invitation of the applicant to the hearing.
Whether the Tribunal acted unreasonably in exercising its discretion to dismiss the applicant’s matter for non-appearance
As outlined by this Court in BHG22[20] (citing ACN22[21]), 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.
[20] BHG22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 176 (“BHG22”).
[21] ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744.
Further, ss 425 and 425A of the Act are to be read together.[22] 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.
[22] Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [39] (“SZFHC”).
As set out above, the Court is satisfied that the applicant in this matter was properly invited to appear at the Tribunal hearing as required by ss 425 and 425A of the Act.
Because the applicant had been validly 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.
The applicant did not appear at the hearing on 25 October 2021. He does not dispute this.
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 applicant’s review application without any further consideration (pursuant to s 426(1A)(b) of the Act).
The Tribunal, in this matter, chose to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act).
The Tribunal’s decision to exercise its powers in this regard is discretionary. As such, that decision must be made “reasonably”.
In the circumstances of this matter, the Court is satisfied that the Tribunal acted reasonably. Relevantly:
(a)the hearing invitation was sent to the applicant via email to his nominated email address and there was no evidence before the Tribunal to suggest that the applicant had not received that invitation (for example, there was no email failure notice received);
(b)no further material had been provided to the Tribunal by the applicant in support of his review application and he did not otherwise make any contact with the Tribunal before the hearing; and
(c)the applicant did not appear at the Tribunal hearing at the scheduled time of 4.00 pm (VIC time) on 25 October 2021.
The Court further notes that, as was explained in BHG22 (citing Sun[23] and Mohammed[24]), 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 an applicant can be notified of the scheduled hearing.[25] 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.[26]
[23] Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 901.
[24] Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 268.
[25] SZFHC at [39].
[26] SZFHC at [41].
The Court is satisfied that the Tribunal acted reasonably in proceeding to dismiss the applicant’s application pursuant to s 426A(1A)(b) of the Act.
No jurisdictional error arises in this regard.
Whether the Tribunal erred by confirming the decision to dismiss the application
So far as the Confirmation Decision is concerned, the Court notes that the applicant was notified (by email) of the Non-Appearance Decision on 26 October 2021.
The Court notes that, when the applicant was advised that his application had been dismissed, he was also advised that he could seek reinstatement within 14 days of receiving notice of the Non-Appearance Decision (that is, by 9 November 2021). Relevantly, the letter to the applicant provided as follows:
As you failed to attend the scheduled hearing, we have decided to dismiss your application for review.
A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications.
You may apply to us, in writing, for reinstatement of the application by 9 November 2021. 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.
(Emphasis in original)
The applicant did not seek reinstatement or make any contact with the Tribunal prior to the Confirmation Decision being made. 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.
In circumstances where no application for reinstatement was made by the applicant, the Tribunal was legislatively required to confirm the decision to dismiss the applicant’s application.
The Tribunal did so and provided the applicant with a written statement to that effect, in the form of the Confirmation Decision, on 10 November 2021.
No jurisdictional error arises in relation to the Tribunal’s Confirmation Decision.
Conclusion regarding merits of the substantive application
The Tribunal exercised its discretion to dismiss the application reasonably.[27] The Tribunal provided an evident and intelligible justification for the Non-Appearance Decision, noting that the applicant had been properly invited to the hearing.
[27] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [97]; EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187 at [22].
On 26 October 2021, the Tribunal complied with its obligation to notify the applicant of the Non-Appearance Decision as required by s 426B(5) of the Act. The Tribunal sent the applicant an email attaching a letter which informed the applicant that his application to the Tribunal had been dismissed due to his non-appearance. This notice also contained information as to how the applicant could have his application reinstated, as required by s 426B(6) of the Act. The applicant did not seek reinstatement and the Tribunal dismissed the application for review as required to under s 426A(1E).
For the reasons outlined above, I find that the substantive application is without merit, and has no prospects of success.
CONCLUSION
The delay in filing the application, the lack of both a satisfactory explanation for that delay and an arguable case of jurisdictional error by the Tribunal, are such that it is not in the interests of the administration of justice for the Court to grant an extension of time in this matter.
Accordingly, the application for an extension of time is refused.
COSTS
The first respondent seeks costs against the applicant in the amount of $3,930.00. At the hearing the applicant indicated that there were no reasons as to not pay costs.
Given the circumstances of this case, and noting that the applicant was wholly unsuccessful in his application, I also order that the applicant pay the first respondent’s costs in the amount of $3,930.00.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 21 September 2023
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