BMF20 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2023] FedCFamC2G 380

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BMF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 380   

File number(s): MLG 1135 of 2020
Judgment of: JUDGE J YOUNG
Date of judgment: 16 May 2023
Catchwords: MIGRATION – extension of time application – applicant filed 24 days out of time – applicant did not attend hearing before Tribunal – applicant did not apply for reinstatement before Tribunal – found no reasonable explanation for delay – found grounds of substantive argument are not reasonably arguable – application dismissed.
Legislation:

Migration Act 1958 (Cth) ss 425, 425A, 426(1A)(b), 426A(1B)-(1F), 426B(5), 441A(5), 441C(5), 445A(5), 445C(5), 476A(3)(a), 477(1) and 477(2).

Migration Regulations 1994 (Cth) reg 4.35D(3)
Cases cited:

BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585

Plaintiff M90/2009 V Minister for Immigration & Citizenship [2009] HCA Trans 279

Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491

SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86

Tran v Minister for Immigration & Border Protection [2014] FCA 533

WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075

WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
Division: Division 2 General Federal Law
Number of paragraphs: 61
Date of hearing: 28 April 2023
Place: Melbourne
Counsel for the Applicant: Self-represented litigant
Counsel for the Respondents: Ms Evans of Sparke Helmore Lawyers
Solicitor for the Respondents: Sparke Helmore Lawyers

ORDERS

MLG 1135 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

BMF20

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

JUDGE J YOUNG

DATE OF ORDER:

16 MAY 2023

THE COURT ORDERS THAT:

1.The Application for an extension of time be dismissed.

2.The applicant pay the costs of the first respondent fixed in the sum of $4,189.38.

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 J YOUNG:

IN SUMMARY

  1. Before the Court is an Application filed on 6 April 2020 for an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek a judicial review of the decision of the second respondent (Tribunal) dated 7 February 2020 confirming its decision to dismiss an application under s 426(1A)(b) of the Act.

  2. The Application was filed 24 days after the expiry of the statutory timeframe. Not being satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the Application is dismissed. The reasons for this decision follow.

    CONTEXT

  3. The applicant is a citizen of China.

  4. On 28 February 2016 the applicant entered into Australia on a Student (Class TU) (Subclass 573) visa.

  5. On 27 February 2016 the applicant applied for a Protection (Class XA) (Subclass 866) visa (visa).

  6. On 3 April 2017 a delegate of the first respondent (delegate) refused to grant the visa.

  7. On 1 May 2017, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant identified Mr MengMeng as his authorised recipient and provided the email address <[email protected]> (applicant’s email address), the postal address “xxxx Auburn NSW 1835” (applicant’s postal address) and the mobile number “xxxxx xxx88” (applicant’s mobile) in the application for review.

  8. On 17 December 2019, the Tribunal emailed the applicant inviting him to attend a hearing on 23 January 2020 at 10.00am. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it. The applicant did not respond to the hearing invitation.

  9. The applicant did not attend the hearing on 23 January 2020. Pursuant to s 426(1A)(b) of the Act, the Tribunal dismissed the Application for non-appearance (dismissal decision).

  10. On that same day, 23 January 2020, the Tribunal sent a copy of the dismissal decision to the applicant’s email address. The notification letter sent with the dismissal decision informed the applicant that reinstatement of the application could be sought by 6 February 2020. The applicant was also provided with an information sheet entitled “information about dismissal of applications” which informed the applicant that if reinstatement was not sought within 14 days the Tribunal must confirm the decision to dismiss the application.

  11. The applicant did not apply for reinstatement of the application.

  12. On 7 February 2020 the Tribunal confirmed its original decision to dismiss the application (confirmation decision).

    The Tribunal’s decision

    Dismissal decision

  13. The Tribunal found that the applicant was invited pursuant to s 425 of the Act to appear before it on 23 January 2020 at 10.00am but did not appear at the scheduled time and place. The Tribunal recorded that the applicant was on notice that the Tribunal may dismiss the Application without further consideration of the Application or information before it if the applicant did not attend. The Tribunal outlined that the applicant had not been sent SMS hearing reminders as the applicant had “provided no telephone contact number to the Tribunal”.

  14. The Tribunal found that the applicant did not attend the scheduled hearing and was satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5) of the Act. It was also satisfied that the invitation it sent had not been returned to sender.

  15. The Tribunal found that no reason for the non-appearance was given. The Tribunal dismissed the application without further consideration of the application or the information before it.

    Confirmation decision

  16. The Tribunal found that the applicant had been notified of the dismissal decision and had been given a copy of the written statement and reasons in accordance with s 426B(5) of the Act. The applicant had been advised that reinstatement of the application could be sought within 14 days of receiving the dismissal decision and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision. The Tribunal found that as the applicant did not apply for reinstatement within the 14 day period it must confirm the decision to dismiss the application.

    APPLICATION FOR AN EXTENSION OF TIME

    Was the Application filed late?

  17. Section 477(1) of the Act requires that an Application to this Court be made within 35 days of the date of the migration decision.

  18. The Tribunal’s confirmation decision was made on 7 February 2020. An Application for judicial review of that decision in this Court was required to be filed by 13 March 2020. The Application for judicial review was not filed until 6 April 2020.

  19. Accordingly, the Application was made 24 days after the expiry of the statutory timeframe.

    Should the Court be satisfied to make an order extending time?

  20. Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an Application must be made, if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an Order.

  21. The Act does not specify any criteria which must be satisfied to establish that it is in “the interests of the administration of justice” to grant an extension.

  22. The principles regarding an Application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that decision, Jagot and Halley JJ found that the Court has an obligation “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”.[1] Further, they identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time – although it is noted that this list is not exhaustive:

    (1)the extent of the delay and explanation for it;

    (2)any prejudice to the respondent if an extension were granted;

    (3)the impact on the applicant if the time was not extended;

    (4)the interests of the public at large; and

    (5)the merits of the substantive Application.

    [1]BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [40]

  23. In their Application filed 6 April 2020, the applicant specified the following grounds as to why they say it is necessary in the interests of the administration of justice to extend time in the following terms (without alteration):

    (1)The email I contacted with AAT was collected by the intermediary company, which has been closed, so I could not receive any letter from AAT, including asking me to go to court and write and explanation letter

    (2)Due to the current COVID-19 precautionary measures, It was inconvenient to go out and ask for the Decision letter and sign the Affidavit form.

  24. Other than the accompanying affidavit which annexed the Tribunal’s decision, and a Notice of Address of Service filed on 8 October 2021, nothing further was filed in support of the request for an extension of the time.

  25. At the hearing of this matter, the applicant was invited to elaborate and sought to add the following for consideration of the Court:

    (a)the applicant used an agent in relation to the application to the Tribunal and used the agent’s email address;

    (b)the agent closed down and the applicant didn’t have an opportunity to correct their email address;

    (c)the applicant then engaged a second agent. The second agent told the applicant that they had already changed the applicant’s email address;

    (d)the applicant was not told by the second agent that they had received any documents form the Tribunal; and

    (e)due to COVID the applicant could not progress the Application in time.

  26. These matters appear largely to be a reiteration of the matters contained in the Application and set out at paragraph [23] above.

    Delay and explanation

  27. At the hearing, the Applicant confirmed that he relied upon the matters set out in paragraphs [23] and [25] above to explain the delay in filing the Application.

  28. The delay is of a moderate period of time. The Court has, in other cases, described a delay of 74 days as “substantial” and a delay of 54 days as likely to be fatal to an application for an extension of time where there is no reason for the delay: WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14]; and WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28].

  29. Typically the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38] (Tran). The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of long delay: Tran at [38].

  30. The applicant has not offered a plausible or acceptable explanation for the delay in making this Application and this weighs against the grant of an extension of time.

  31. Firstly, there is no evidence that the agent engaged by the applicant closed down nor that the applicant engaged a second agent who made the representations alleged by the applicant. There is no evidence to support the assertion that the applicant did not have an opportunity to correct the email address. Without evidence, there is an insufficient basis upon which to assess the explanation: Plaintiff M90/2009 V Minister for Immigration & Citizenship [2009] HCA Trans 279 (Plaintiff M90). Further, it is incumbent on the applicant to notify the Tribunal of any change of email address.

  32. Secondly, pursuant to s 441A(5) the Tribunal is permitted to send correspondence to the last email address provided by the applicant to the Tribunal. Pursuant to s 445C(5) if the Tribunal gives a document to a person in accordance with s 445A(5) the person is taken to have received the document at the end of the day on which the document was transmitted.

  33. Thirdly, there is no evidence as to how the applicant was “inconvenienced” by COVID-19 or how this precluded the applicant from filing the Application within the statutory timeframe, most particularly when an Application may be lodged electronically. There is therefore an insufficient basis upon which to assess the explanation: Plaintiff M90. Further, even if the applicant was inconvenienced by COVID-19 at the time of the confirmation decision, the applicant is required to ascertain his review rights and to comply with the applicable time limits under the Act.

    Prejudice

  34. The first respondent properly did not contend it would suffer any particular prejudice if the applicant was granted an order allowing an extension of time.

  35. However, the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].

  36. I assess this as a neutral consideration.

    Public interest and impact on the applicant

  37. There is a public interest in ensuring that decisions of the Executive are made lawfully. The merits of the substantive grounds relied upon by the applicant will of course be relevant to this, which are considered below.

  38. It has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17].

  39. As to the impact upon the applicant, if the extension of time is refused then the Tribunal’s decision will stand. Although an alternative route of review might be available, under s 476A(3)(a) of the Act the refusal of an extension of time forecloses any right of appeal. MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [65].

  40. I accept that a refusal to grant an extension of time would result in the applicant returning to their country of nationality which is a circumstance they say they fear and that this is a matter weighing in favour of the grant of an extension of time.

    Merits of the substantive application

  41. While the discretion of the Court is broad, the Court should not permit an Application to proceed if it is bound to fail, and should accordingly decline to extend time.

  42. There are three grounds of the substantive Application as follows (without amendment):

    (1)The Tribunal dismissed the application for review, Because I never received the letter from Tribunal regards the time and date of scheduled hearing and reinstatement, I was not given any opportunity to present my arguments as well as that the Tribunal did not consider my individual merits

    (2)The Tribunal’s decision did not in accordance with s.426A(b) and s.426B(5)

    (3)The Tribunal made its decision without giving me further opportunity to provide evidence in supporting the application.

  43. Although invited to elaborate on these grounds at the hearing, the applicant did not provide any further matters for the consideration of the Court.

  44. I am not persuaded that the grounds of the substantive Application are reasonably arguable for the following reasons.

    Ground one

  45. As to ground one, firstly, the Tribunal invited the applicant to attend the hearing and that invitation complied with the requirements at s 425A of the Act. The invitation:

    (a)gave the applicant notice of the day, time and place of the scheduled hearing;

    (b)gave the applicant notice by one of the methods specified in s 441A of the Act, namely, transmitting it by email to his nominated email address, being the last email address provided to the Tribunal in connection with the review as required by s 441A(5) of the Act;

    (c)gave a period of notice that was at least the prescribed period, being 14 days after the date of receipt of the notice: reg 4.35D(3) of the Migration Regulations 1994 (Cth). As the hearing invitation was sent by email, the applicant was taken to have received it at the end of the day on which it was transmitted: s 441C(5) of the Act. The applicant was notified of the hearing on 6 February 2018 and was therefore given 35 days’ notice of the scheduled hearing; and

    (d)contained a statement on the effect of s 426A of the Act, being the consequences of the failure to appear.

  46. Pursuant to s 441C(5), as the Tribunal corresponded with the applicant by email in accordance with s 441A(5), the applicant is taken have received the document at the end of the day on which it was transmitted.

  47. Secondly, the Tribunal notified the applicant of the dismissal decision on 23 January 2020 by email to the applicant’s last nominated email address. That notification complied with s 426B of the Act, in that it:

    (a)provided the applicant with a copy of the dismissal decision within 14 days;

    (b)was sent to the applicant’s email address in accordance with s 441A(5);

    (c)invited the applicant to apply for reinstatement within 14 days; and

    (d)contained a statement describing the effect of s 426A(1B) to (1F).

  48. Pursuant to s 441C(5) the applicant was taken to have received the notification at the end of the day on which is was transmitted.

  49. Thirdly, in so far as ground one contends that the Tribunal erred by not considering the merits of the applicant’s case, this ground is misconceived. Under s 426A of the Act, when an applicant is properly invited to attend a hearing but fails to do so, s 426A(1A)(b) empowers the Tribunal to dismiss the Application without further consideration of the Application or information before it. Accordingly, the Tribunal was not required to consider the merits of the applicant’s claim or the Applicant’s protection claims.

  50. Further, the applicant did not file for reinstatement of the review application within 14 days. Therefore the Tribunal was required to confirm the dismissal decision by s 426A(1E) of the Act.

  51. Accordingly, ground one of the substantive Application discloses no reasonably arguable jurisdictional error by the Tribunal.

    Ground two

  52. Ground two is entirely unparticularised. Further, at the hearing, the applicant did not elaborate on this ground or provide any particularisation.

  53. In any event, as set out above, the Tribunal complied with its obligations under s 426A and s 426B of the Act.

  54. Accordingly, ground two of the substantive Application discloses no reasonably arguable jurisdictional error by the Tribunal.

    Ground three

  55. The applicant failed to attend the hearing. Accordingly, as set out above, pursuant to s 426A(1A)(b) the Tribunal was empowered to dismiss the application, without considering the applicant’s claims or providing the applicant with a further opportunity to appear before it or file further evidence. Further, I consider that the Tribunal’s exercise of the power in the present case was reasonable because the applicant had been properly notified of the hearing, did not reply to the hearing invitation or otherwise engage with the Tribunal following the lodgement of the application in May 2017, the applicant had been informed as to the consequence of failing to attend and no reason for non-appearance was given or request for an adjournment was made.

  1. For those reasons, I also do not consider that the Tribunal’s misstatement that the applicant had not provided a contact telephone number affects the reasonableness of the exercise of the Tribunal’s power under s 426A(1A)(b). Further, the Tribunal is not required to send SMS hearing reminders to an applicant.

  2. Additionally, the applicant did not reply to the dismissal decision, nor file for reinstatement of the review application within 14 days. Therefore the Tribunal was required to confirm the dismissal decision by s 426A(1E) of the Act.

  3. Accordingly, ground three of the substantive Application discloses no reasonably arguable jurisdictional error by the Tribunal.

    CONCLUSION

  4. The Application in this case is 24 days outside the statutory timeframe. The Court may only grant an extension of the time within which the Application was to be made if satisfied such extension is in the interests of the administration of justice.

  5. Weighing all of the considerations above, I am not satisfied it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review. The Application is dismissed.

  6. The Application will be dismissed with an order that the applicant pay the first respondent’s costs in the scale amount of $4,189.38.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

Associate:

Dated:       16 May 2023


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

1

SZUSZ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1165