Bna23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1102
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BNA23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1102
File number: PEG 113 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 30 November 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – extension of time application – lengthy delay – inadequate explanation – no prejudice – no arguable case of jurisdictional error – extension of time refused. Legislation: Migration Act 1958 (Cth); ss 425, 425A, 426A, 441A, 441C and 477
Migration Regulations 1994 (Cth), reg 4.35D
Cases cited: ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Gallo v Dawson [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
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 SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of hearing: 19 October 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 113 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BNA23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) (as amended on 19 October 2023) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of China (Court Book (“CB”) 1-3). He first arrived in Australia in August 2017 as the holder of a visitor visa (CB 11-12).
On 1 October 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-23). In his visa application, the applicant answered “no” to the question of whether he “authorise[d] another person to receive communication about [the] application on [his] behalf” but agreed to the then Department of Immigration and Border Protection (the “Department”) communicating with him via email. The applicant provided the Department with an email address so that this could occur (CB 9).
On 14 November 2017, the Department acknowledged receipt of the visa application and requested fingerprints, a digital photograph and a certified copy of the applicant’s current passport (CB 24-33).
No response was provided by or on behalf of the applicant.
On 3 April 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 38-47). The applicant was notified of the delegate’s decision by letter dated 3 April 2019 (CB 34-37). The notification letter was sent to the applicant via email to his nominated email address, together with a copy of the delegate’s decision (CB 34).
On 4 April 2019, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the “Tribunal”) (CB 48-49). In that application, the applicant indicated that correspondence should be directed to him as the “review applicant” and provided the same email address as he had provided to the Department. He also included a mobile phone number and a postal address in New South Wales in his application to the Tribunal (CB 49).
On 22 October 2021, the Tribunal wrote to the applicant (via email) to advise that, due to the COVID-19 pandemic, the Tribunal was not holding “in person” hearings. The Tribunal’s correspondence relevantly stated (CB 53):
I am writing in relation to your application for review by Administrative Appeals Tribunal (AAT) regarding a visa refusal made by the Department of Home Affairs.
Due to the COVID-19 pandemic, the AAT is not currently holding face to face (or in person) hearings in Melbourne or Sydney and registries are closed to all visitors until further notice. As a result, we are proposing to schedule a hearing for you to attend by video using Microsoft Teams.
If you do not have the appropriate technology or there are other barriers which would prevent you from participating in a hearing scheduled via Microsoft Teams, please advise the AAT within 7 days of receiving this email. If you do not respond to this email, we will assume that you do not have any issues with participating in a hearing scheduled in this manner.
You can provide this advice by emailing [email protected] or by telephone by calling 1800 228 333 (if you require language assistance please contact the Translating and Interpreting Services on 131 450).
Please refer to the AAT website for information about temporary changes in place to respond to the impact of COVID-19 on services: >
The applicant did not respond to that correspondence.
On 12 November 2021, the Tribunal invited the applicant (via email) to appear at a hearing before it on 30 November 2021 (by video conference using Microsoft Teams) (CB 54-57). The hearing invitation relevantly stated (CB 56):
What you should do on receipt of this letter
…
If you are not able to appear as scheduled, for instance, if you are not available on this day or you believe you will experience difficulty participating in the hearing as arranged, you need to advise us as soon as possible. Please note that we will only make changes to this hearing if satisfied that it is reasonable and there are good reasons for doing so.
The Presiding Member will consider any submissions and you will be advised of the outcome of that consideration before the hearing. You must assume that the hearing will go ahead as scheduled unless we have advised you otherwise.
…
What will happen if you don’t appear
If you do not appear at the scheduled hearing, including not appearing by video conference using Microsoft Teams at the scheduled time, 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.
A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
Included with the hearing invitation was a fact sheet containing additional information about hearings (CB 58-62). That fact sheet provided the applicant with additional information and relevantly stated (CB 61-62):
What if I cannot attend the scheduled hearing?
If you are not able to attend the scheduled hearing, or you would prefer that the hearing take place in a different way (e.g. at an AAT office instead of by video or telephone), you must advise us of this as soon as possible. Please note that we will only make changes if we are satisfied that it is reasonable and there are good reasons for doing so.
If you do not appear at 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. Not appearing at the scheduled hearing means:
…
•if you were invited to appear by video conference using Microsoft Teams, you do not appear via Microsoft Teams at the scheduled time;
…
If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide a convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you are seeking more time to present information after the hearing you should advise the Member at the hearing and provide strong reasons.
What happens if an application is dismissed?
If we dismiss your application, a written statement of the dismissal decision will be given to you. Within 14 days after receiving notice of the dismissal decision you may apply for reinstatement of the application.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so. If we reinstate the application, the application is taken never to have been dismissed and we will conduct (or continue to conduct) the review accordingly.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14-day period, we must confirm the decision to dismiss the application. If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the department's decision remains in force.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
On 23 November 2021, the Tribunal sent an SMS hearing reminder message to the applicant using the mobile phone number provided by him with his review application. That message relevantly stated (CB 81):
Reminder - Your AAT hearing is on 30/11/21. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
On 25 November 2021, the Tribunal wrote to the applicant (via email) to advise that the Microsoft Teams link for his hearing had been updated and provided a replacement link (CB 63-66). The email from the Tribunal relevantly stated (CB 63):
Please read the attached correspondence carefully, noting that we may require a response from you before a certain date.
Please note that the MS Teams link to your hearing has been updated. Please use the link contained within the Invitation To Hearing attached to this email to join your hearing. The date and time of your hearing, and all other details, remain the same. If you have any questions about your hearing or experience difficulties joining your hearing at the scheduled date and time, please call 02 9276 5460.
The letter attached to that email correspondence otherwise replicated information provided to the applicant in the hearing invitation letter sent to him on 12 November 2021 (including the date and time of the hearing, how the applicant could attend and what might happen if he did not attend the hearing).
On 29 November 2021, the Tribunal sent the applicant a further SMS hearing reminder message using the mobile phone number provided by him with his review application. That message replicated the SMS hearing reminder message sent to the applicant on 23 November 2021 (CB 81).
The applicant did not attend the hearing scheduled before the Tribunal on 30 November 2021 (CB 67-69).
On 30 November 2021, the Tribunal dismissed the application for non-appearance pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (the “Act”) (the “Non-Appearance Decision”) (CB 72-74). The applicant was notified of that decision and advised of his right to apply for reinstatement by letter sent to him that same day via email (being on 30 November 2017) (CB 70-71). That letter relevantly stated (CB 71):
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 14 December 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.
Attached to the Tribunal’s correspondence was an information sheet which also included detailed information about how the applicant could seek reinstatement of his application (CB 75-76).
The applicant did not seek reinstatement (CB 80).
On 15 December 2021, the Tribunal confirmed the Non-Appearance Decision made on 30 November 2021 (the “Confirmation Decision”) (CB 79-80). By virtue of s 426A(1F) of the Act, the delegate’s decision was taken to be affirmed.
On 16 June 2023, the applicant applied to this Court for judicial review of the Tribunal’s Confirmation Decision. Unfortunately, that application was filed outside of the 35-day time limit specified in s 477(1) of the Act. Accordingly, the applicant requires an extension of time to pursue the substantive proceeding in this Court.
This judgment addresses whether an extension of time should be granted. For the reasons that follow, the Court has determined that an extension of time should not be granted.
CONSIDERATION
The materials before the Court include the application for an extension of time and supporting affidavit, both filed by the applicant on 16 June 2023, a court book numbering 81 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 11 October 2023 and an affidavit of service of Aatika Ismailjee (affirmed and filed on 12 October 2023).
Procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any affidavits or a supplementary court book and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The applicant appeared before this Court on 19 October 2023 without legal representation. He was assisted at the hearing by an interpreter in the Mandarin language. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The Court noted that the applicant had only asked for a review of the Confirmation Decision. He had not sought review of the Non-Appearance Decision. The Court explained to the applicant why this was an issue and, with his consent (and the consent of Ms Ellis, solicitor for the Minister), the Court made an order amending the judicial review application to include seeking review of the Non-Appearance Decision.
Noting that the applicant was not legally represented, the Court explained to him that the statutory timeframe within which an applicant may seek judicial review in this Court is 35 days from the date of the relevant decisions. It was further noted that, in this matter, the Tribunal’s Non-Appearance and Confirmation Decisions are dated 30 November 2021 and 15 December 2021 respectively. The dates by which the applicant was required to file his application in this Court were 4 January 2022 (in relation to the Non-Appearance Decision) and 19 January 2022 (in relation to the Confirmation Decision). Unfortunately, the applicant did not file his substantive application in this Court until 16 June 2023. Hence, the delays here are 528 days in relation to the Non-Appearance Decision and 513 days in relation to the Confirmation Decision.
The Court also explained that, despite the late filing of a substantive application for judicial review, an applicant may ask the Court for an extension of time within which to file their substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicant requested an extension of time in writing and provided three “grounds” explaining why he believes that the extension should be granted. 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.
Noting, again, that the applicant appeared without any legal assistance, the Court outlined to him that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that, when determining if a proposed application has “merit”, the Court will make that assessment at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error.
The Court invited the applicant to address each of the factors outlined above and highlight anything that he considered relevant to his request for an extension of time. The applicant’s responses are discussed in the consideration that follows.
Length of delay
The Court notes that an extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. 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: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
As outlined above (at [26]), the delays in this matter are 528 days in relation to the Non-Appearance Decision and 513 days in relation to the Confirmation Decision.
In both cases, the delays (of approximately 18 months) are extraordinary. This weighs heavily against granting an extension of time.
Prejudice
In written submissions (filed in this Court on 11 October 2023), the Minister conceded that there is no prejudice to the Minister beyond the public interest in the finality of administrative decision making.
This weighs in favour of granting the extension of time.
Explanation
The longer the delay, the more satisfactory the explanation for that delay needs to be: 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.
In the application for judicial review filed by the applicant, he provides three “grounds” for the extension of time which, relevantly, provide as follows (without alteration):
1. My previous translator did not inform me on time.
2. I lost the best time to arrange the appeal documents.
3. I had no idea about my review best time.
The applicant raised similar concerns in his oral submissions before this Court (albeit with reference to “a lawyer”, instead of “a translator”). The applicant explained that he had “done everything in Sydney” and everything was handled by his lawyer in Sydney. The applicant repeated that, when the appeal dates expired, he did not know because he was not informed by his lawyer of the relevant timeframe. The applicant told the Court that when he moved to Perth, he did not have any contact with his lawyer and that the lawyer had told him that if there was a need, the lawyer would contact him. The applicant further explained that it was only when he contacted his lawyer “last year” regarding obtaining a Medicare card that he discovered that the time to appeal “had expired”.
There is no evidence before this Court to suggest that the applicant was assisted by a lawyer in relation to his Tribunal review. As outlined above the applicant lodged an application for review with the Tribunal on 4 April 2019. In that review application, the applicant indicated that any correspondence from the Tribunal should be directed to him as the “review applicant” and provided the same email address to the Tribunal as he had provided to the Department (with his protection visa application). The applicant also included a mobile phone number and a postal address in New South Wales (CB 49).
The Court further notes that, at no point did the applicant indicate to the Tribunal that he was represented by a lawyer or request that any correspondence from the Tribunal be directed to a lawyer (or, indeed, a translator or other representative) rather than to him as the review applicant.
Further, as correctly submitted by the Minister (at [26] in written submissions filed in this Court on 11 October 2023), even if the applicant was assisted by a lawyer (or another representative or translator) who did not advise him of the time within which he could seek review, mere negligence or incompetence of that third party is not sufficient to constitute conduct that warrants the intervention of the Court: SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40 at [52].
To the extent that the applicant claims that he had “no idea” about his review rights or the time to apply, the Court sympathises. However, ignorance is no excuse in matters of this sort. In this regard, the Court relies on comments made by the Federal Court of Australia in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, as follows:
38.In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.
An applicant seeking review of a decision made by the Tribunal must take steps to ensure that they do what is required of them to lodge an appeal within the requisite time period. The applicant does not appear to have done that in this matter. There is no evidence before this Court, for example, that the applicant sought assistance from the Court or made any contact with the Tribunal to follow up on his review or in relation to what was required of him to appeal a Tribunal decision.
The Court does not consider that the explanation provided by the applicant is satisfactory to justify such an inordinate delay.
This weighs against granting an extension of time.
Merits
The most critical factor for consideration when determining whether the Court should grant an extension of time is, arguably, whether the proposed application for judicial review has any “prospect of success” (viewed impressionistically only).
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J’s observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
To assist the applicant, the Court explained to him that the only issue before the Court was whether there is an arguable case, viewed impressionistically, that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272.
Against this background, the applicant stated that he did not receive notification of the hearing from his lawyer and that his lawyer had not informed him of the hearing. The applicant explained that, because he was not informed, he did not attend the Tribunal hearing. When asked if this was the person who was helping him in Sydney, the applicant confirmed. The applicant also confirmed that the person assisting him was a lawyer and not a migration agent.
This issue will be considered further below.
The Tribunal’s decisions
To properly determine whether the proposed judicial review application has “merit” (viewed impressionistically), it is useful to first set out the Tribunal’s decisions.
The Non-Appearance Decision
The Non-Appearance Decision dated 30 November 2021 provides (CB 72-73):
1.On 22 October 2021 the Tribunal wrote to the review applicant informing them that a hearing in their matter was likely to proceed via video using Microsoft Teams. The letter asked the review applicant to respond within 7 days if they had any concerns about the hearing proceeding in this manner. The Tribunal did not receive a response.
2.The review applicant was invited under s 425 of the Migration Act 1958 (Cth) to appear before the Tribunal by video using Microsoft Teams on 30 November 2021 at 3:30PM for a thirty minute hearing. To attend the hearing by video, the review applicant was invited to click on a link in the hearing invitation at the specified time. Detailed instructions on how to attend the hearing were included in the invitation. The hearing invitation also gave the review applicant an option to join the hearing by audio only by calling, 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 video. 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 video.
3.The invitation stated that if the review applicant 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 Tribunal also sent the review applicant SMS reminders about the hearing five business days and one business day before the scheduled hearing to the last mobile phone number provided by the review applicant to the Tribunal in connection with the review. 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 applicant did not respond to the hearing invitation and has not engaged with the Tribunal about the review process since their application for review was lodged on 4 April 2019.
4.The review applicant 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 applicant joined the hearing by clicking on the link in the hearing invitation at the scheduled time, or that they 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 applicant contacting the Tribunal by any other means at the scheduled time to explain why they had not used the link, or telephone number and unique conference ID, to attend the hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5) and that the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the nonappearance 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.
The Confirmation Decision
The Confirmation Decision dated 15 December 2021 provides (CB 80):
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 April 2019 to refuse to grant the visa applicant a protection visa under the Migration Act 1958 (Cth) (the Act).
2.On 30 November 2021 the Tribunal dismissed the application under s 426A(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The applicant was 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 4268(5). The applicant was 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 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.
DECISION
5. The Tribunal confirms the decision to dismiss the application.
Proposed application for judicial review
Grounds of review
The application for judicial review filed by the applicant on 16 June 2023 contains one “ground of review” as follows (without alteration):
1.I am a real refugee and I will face the dangerous situation if I go back my own country.
Unfortunately, this “ground” does not address the issue of jurisdictional error. Instead, the applicant is asking the Court to engage in an impermissible merits review of the Tribunal’s decision. As outlined above, the Court does not have any jurisdiction to do so: Wu Shan Liang at 272.
Oral submissions
As set out above, in oral submissions before this Court, the applicant claimed that he had not attended the Tribunal hearing because he had not received the hearing notification from the Tribunal and that his lawyer had not informed him of the hearing date.
Essentially, the applicant appears to claim that he was “not properly invited to attend the Tribunal hearing”.
The Court disagrees.
As outlined by this Court in ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744 (“ACN22”), the Tribunal is required to invite the applicant to attend a hearing before it pursuant to s 425 of the Act. Further, ss 425 and 425A of the Act are to be read together: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39].
Section 425 of the Act relevantly provides as follows:
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 this matter, the Tribunal invited the applicant to attend a hearing before it by way of a letter dated 12 November 2021. That letter was sent to the applicant via email that same day (being on 12 November 2021) (CB 54-62).
Section 425A of the Act sets out the necessary requirements of such an invitation and, relevantly, provides as follows:
425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
Here, the invitation to attend the hearing:
(a)was addressed to the applicant (CB 55);
(b)clearly indicated the date, time and means by which the applicant could attend that hearing (being on 30 November 2021 at 3.30pm (NSW time) and noting that the hearing would take place by video conference using Microsoft Teams) (CB 55): s 425A(1) of the Act;
(c)was sent to the applicant via email (a method approved by s 441A(5)(b) of the Act) to the applicant’s nominated email address on 12 November 2021 (CB 54): s 425A(2)(a) of the Act;
(d)was given to the applicant 18 days prior to the scheduled hearing, exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth) (being 14 days after the day the person receives the notice): s 425A(3) of the Act;
(e)contained a statement describing the effect of s 426A of the Act and explained what would happen if the applicant did not attend the hearing (CB 56): s 425A(4) of the Act.
Further, all of the above the information above was re-iterated to the applicant in further letter, in similar terms to those set out above (sent to the applicant via email on 25 November 2021), containing an updated link to connect to the video conference: CB 63-66.
For completeness, the Court notes that, where a document has been 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 to the applicant 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), regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36].
On the basis of the information above, the Court is satisfied that the Tribunal complied with the requirements set out in s 425A of the Act and that the applicant was properly invited to attend the hearing.
No arguable case of error arises in this regard.
Otherwise
As explained by this Court in ACN22, 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.
Having found that the applicant had been properly invited to attend a hearing, the Court will also consider whether the Tribunal acted reasonably in exercising its discretion under s 426A of the Act.
Section 426A of the Act relevantly provides as follows:
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 attend the Tribunal hearing on 30 November 2021 (CB 67-69). Section 426A of the Act was therefore enlivened.
In those circumstances, the Tribunal could either proceed to determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act) or dismiss the application without any further consideration (pursuant to s 426A(1A)(b) of the Act).
Here, the Tribunal chose to dismiss the application without any further consideration (as per s 426A(1A)(b) of the Act).
The decision to exercise a discretionary power must be made “reasonably”. Within the context of this matter, the Court is satisfied that the Tribunal’s actions were reasonable. Relevantly:
(a)the applicant made no attempts to contact the Tribunal or to engage with the review process after he had lodged his review application on 4 April 2019;
(b)the Tribunal sent an SMS hearing reminder message to the applicant at or around 11.00am on 23 November 2021 (using the mobile number provided by him in his review application) (CB 81);
(c)the Tribunal sent a further SMS hearing reminder message to the applicant at or around 11.00am on 29 November 2021 (again using the mobile number provided by him) (CB 81);
(d)the mobile phone number used by the Tribunal is the same mobile phone number provided by the applicant in relation to the application before this Court;
(e)the applicant did not appear at the hearing (by video link) at the scheduled time of 3.30pm (on 30 November 2021) (CB 67-69); and
(f)
the Tribunal waited until 4.28pm on 30 November 2021 before making its
Non-Appearance Decision (CB 74).
On the basis of the above, the Court is satisfied that the Tribunal acted reasonably in dismissing the applicant’s review application pursuant to s 426A(1A)(b) of the Act.
No arguable case of error arises in this regard.
Conclusion regarding merits of the substantive application
The applicant’s “ground of review” and oral submissions in this matter, assessed at a reasonably impressionistic level, do not identify any arguable case of jurisdictional error on the part of the Tribunal. Further, the Court has itself been unable to identify any arguable grounds of error of the sort that this Court can address.
This weighs heavily against granting an extension of time.
CONCLUSION
The significant delay in filing and the lack of both a satisfactory explanation for that delay and any arguable case of jurisdictional error on the part of the Tribunal (judged at an impressionistic level) 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.
The application for an extension of time (as amended on 19 October 2023) is, accordingly, dismissed.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 November 2023
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